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Portland, Oregon, ‘ban the box’ ordinance takes effect July 1

by Cal Keith

Employers in Portland, Oregon, need to be ready for the city’s new “ban the box” ordinance, which takes effect July 1.

The state of Oregon’s ban-the-box law took effect January 1, but Portland’s ordinance goes further than the state law.

Portland’s ordinance applies to businesses that (1) employ six or more employees and (2) have at least one employee who spends most of her time working in the city. It does not apply to law enforcement jobs, the criminal justice system, volunteer positions, or jobs for which federal, state, or local law requires criminal history to be considered.

Covered employers are prohibited from excluding an applicant from employment solely because of his criminal history. Also, employers in Portland cannot access or consider an applicant’s criminal history until after making a conditional offer of employment. Under the ordinance, an applicant’s criminal history cannot be discussed during the interview process.

The ordinance includes significant exceptions, however. Employers can consider an applicant’s criminal history if she will have direct access or provide services to children, the elderly, the disabled, or individuals with alcohol or drug dependency issues. Also, employers that participate in programs designed to encourage the employment of applicants with criminal histories may inquire about criminal records. In addition, an administrative rule will identify companies in which heightened public safety concerns or business necessity requires earlier consideration of criminal history.

The ordinance limits which records may be considered as part of an applicant’s criminal history. Arrests that did not lead to a conviction may not be considered. Expunged convictions, charges that did not involve actual or attempted physical harm, and charges that were resolved through completion of a diversion or judgment deferral program may not be considered. However, employers may consider pending arrests.

A criminal conviction alone isn’t sufficient to rescind a conditional offer of employment. Rather, the employer must make a “good-faith” determination, consistent with business necessity, that the criminal record requires rescission of the offer. The employer must consider the nature and gravity of the offense, how long ago the offense occurred, and the nature of the job. If an employer decides to rescind an offer of employment, it must notify the applicant in writing and identify the conviction on which it relies.

For more information on the Portland, Oregon, ban-the-box ordinance, see the March issue of Oregon Employment Law Letter.

Cal Keith  is an attorney with Perkins Coie LLP in Portland, Oregon. He can be reached at ckeith@perkinscoie.com.