Portland, Oregon Passes Broad Ban the Box Law
Author: David B. Weisenfeld, XpertHR Legal Editor
December 3, 2015
Portland, Oregon has enacted one of the nation's broader "ban the box" laws restricting criminal history inquiries during the hiring process. More than 110 cities and counties plus 19 states have "ban the box" measures, but many either do not apply to private employers or are limited to initial job applications.
But effective July 1, 2016, Portland will go much further. Under a new law, businesses with six or more employees who perform a majority of their work in the city may not ask about a job applicant's criminal history before making a conditional employment offer. This ordinance also includes a ban on any criminal background checks until the conditional job offer phase.
In addition, it prevents employers from ever considering the following areas that may appear in an applicant's background check:
- Arrests not leading to a conviction unless the charges are pending;
- Convictions that have been expunged or voided by a judge;
- Charges not involving physical harm or attempted physical harm by completing a diversion program.
Employers that violate the Portland ordinance may be subject to a civil penalty of up to $1,000 per violation. There are certain exemptions, including for the following positions:
- Law enforcement agencies or other roles in the criminal justice system;
- Jobs with direct access to children, the elderly or the disabled;
- Jobs determined by administrative rule to present public safety concerns; and
- Nonemployee volunteers.
Oregon also has a statewide "ban the box" law that takes effect January 1, 2016, but that is more limited in scope. While the Oregon law will also apply to private employers, it prohibits employers from inquiring about an applicant's criminal background only on initial job applications or before the first interview.
The idea behind "ban the box" laws is to give qualified, rehabilitated candidates a legitimate chance to be considered for job openings. A number of large employers, including Target, Home Depot and Koch Industries have eliminated criminal history questions from their job applications.
Earlier this fall, President Obama ordered all federal government agencies to stop asking prospective employees on applications if they have a criminal record.