- Portland’s Ban-the-Box Law Takes Effect, Administrative Rules Provide Clarity
- July 26, 2016 | Authors: Gustavo A. Suárez; Jennifer Peck Woodruff
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Greenville Office
- Portland, Oregon’s ban-the-box law, the Removing Barriers to Employment Ordinance, took effect on July 1, 2016. The ordinance prohibits most Portland employers from asking about an applicant’s criminal history or conducting a background check on an applicant until after a conditional offer of employment has been made.
Late last month, the Portland City Attorney’s Office published administrative rules and documents related to the ban-the-box ordinance. The newly released rules, which by their terms are to be “liberally construed,” provide insight into how the city and the commissioner of Oregon’s Bureau of Labor and Industries (BOLI) will enforce this new law.
II. Clarifications Concerning the Ordinance’s Prohibition on the Consideration of Criminal History
The administrative rules reiterate that employers are generally prohibited from excluding an applicant from consideration for employment on account of the individual’s criminal history. However, the rules provide details related to this prohibition not found in the original ordinance.
According to the rules, employers are prohibited from gathering, obtaining, or using an applicant’s criminal history information before the employer extends a conditional offer of employment. This prohibition includes any direct or indirect conduct that is likely to result in the gathering or disclosure of an applicant’s criminal history, such as:
- performing a background check; or
- requesting that an applicant disclose his or her criminal history in an application or during an interview.
III. Clarifications Concerning the Permissible Consideration of Criminal History
The rules also provide some insight into the types of actions that an employer may take based on an applicant’s criminal history after a conditional offer of employment has been extended.
An employer may rescind a conditional offer of employment based on an applicant’s criminal history only if the employer determines, in good faith, that:
- a specific offense or conduct in the applicant’s criminal history bears a direct relationship to the position for which the applicant is being considered; and
- rescinding the conditional offer of employment is consistent with business necessity.
The rules also change the wording of the first prong of this standard from “job related,” (a term used in the ordinance) to a seemingly harsher “direct-relationship” standard, and slightly revise the three factors of the “job-relatedness/direct-relationship test” to the following (the rules’ derivations from the ordinance’s language are indicated in bold):
- the nature and gravity of the applicant’s offense or conduct;
- the time that has elapsed since the offense or conduct; and
- the position for which the applicant is being considered.
IV. Portland’s Unique Adverse Action Process
The administrative rules provide guidance with regard to the city’s new adverse action process, which requires that employers notify an applicant if they will be rescinding a conditional offer of employment on the basis of the individual’s criminal history.
First, the rules state that the notification must be made promptly (the rules do not define what “promptly” means) and in writing. “In writing” is defined to include:
- an in-person delivery of a paper document;
- delivery via mail or private courier;
- electronic delivery via email; and
- any other means by which the applicant is provided with a permanent record of the notice.
The City of Portland has provided a sample rescission letter to be provided to applicants. However, the letter does not comply with the adverse action requirements of the Fair Credit Reporting Act.
V. City-Created Criminal History Matrix for Specific Positions
An employer may consider an applicant’s criminal history at any time in the hiring process for certain positions. According to the rules these positions include:
- those with direct access to, or which provide services to, children under the age of 18, the elderly, or persons with disabilities;
- those with direct access to, or which provide services to, persons with a mental illness, alcohol or drug dependence, or substance-abuse disorders; or
- those designated by the employer as part of a federal, state, or local government program designed to encourage the employment of those with criminal histories.
Employers using the matrix must still comply with all other aspects of the ordinance and the rules.
VI. Enforcement & Damages
The rules also provide insight into how violations under Portland’s ban-the-box ordinance will be handled. Any person claiming to be aggrieved by a violation of the ordinance or the administrative rules may file a complaint with the BOLI within 180 days of the occurrence of the violation. Additionally, complaints may be brought by Portland’s city attorney, city commissioner, or Oregon’s attorney general. If the BOLI finds that an employer violated the ordinance, possible relief includes injunctive remedies (e.g., cease-and-desist orders) and civil penalties to of up to $5,000 for each violation, which shall be payable directly to the City of Portland. Importantly, the rule makes clear that the ordinance does not create a private cause of action.