Portland Oregon Ban the Box

December 2nd, 2015

On 11/25/15, the Portland City council passed an ordinance to expand upon the ban the box requirements recently passed by the State of Oregon. The new ordinance in Portland applies to all employers for positions being performed a majority of the time within the city of Portland with 6 or more employees. The law does not include law enforcement, government positions or volunteers. The law makes it an unlawful practice to deny an applicant solely based on an applicant’s criminal history and employers can only inquire into an applicant’s criminal history after making a conditional offer of employment. As a comparison, the State of Oregon restricts the inquiry to an employment application or prior to an initial interview, in cases where no interview is conducted , it also cannot require an applicant to disclose until making a conditional offer of employment.

Prior to denying an applicant based on a criminal history, the employer must determine that a specific offense or conduct is job related and consistent with business necessity. In making this determination the employer must conduct an individualized assessment with the following factors:

  1. The nature and gravity of the criminal offense
  2. The time that has elapsed since the offense took place
  3. The nature of the employment sought

The law also restricts employers from considering non-pending arrests that did not result in a conviction, convictions that have been judicially voided or expunged, or charges that have been resolved through the completion of a diversion or deferral of judgement program.

The following are the exceptions to this ordinance and a company may consider an applicant’s criminal history at any point in the hiring process and use the city’s criminal matrix to screen applicants but must comply with all other requirements of the ordinance: positions that involve direct access or services to children, the elderly, persons with disabilities, persons with mental illness or individuals with substance abuse disorders, positions which have been determined by administrative rule to present heightened public safety concerns or business necessity and positions designated by the employer to encourage the employment of those with criminal histories. If after considering an applicant’s criminal history the employer elects not to hire the person, they must notify the applicant in writing of the decision and identify the relevant criminal history on which the decision is based. The new Portland law becomes effective on July 1st, 2016. The Oregon state law becomes effective January 1st 2016.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.