Portland’s Ban-the-Box Law Takes Effect, Administrative Rules Provide Clarity

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.

If an applicant discloses his or her criminal history before a conditional offer of employment is extended (despite the employer’s compliance with the requirements of the ordinance), the employer must disregard the information and take reasonable steps to prevent further disclosure or dissemination of the applicant’s criminal history. Moreover, the employer may not base its decision to make (or not make) a conditional offer on this self-disclosed information.

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.

While at first glance, this analysis seems to closely follow the language in the original ordinance, a closer look reveals that the rules take a slightly more aggressive approach.  First, the prohibition is worded in a restrictive, rather than a permissive way. While the ordinance states that it is not an “unlawful practice” for an employer to rescind a conditional offer of employment if the standards set forth above are met, the rules state that an employer may only rescind the offer based on a criminal record if the requirements are met.

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.

The rules slightly modify the ordinance’s limitations on the consideration of (1) arrest histories; (2) expunged records; and (3) criminal matters that have been resolved through diversion or deferral-of-judgment programs for non-violent offenses.  Specifically, the rules extend the scope of the prohibition to include arrest histories that have been expunged (the ordinance covers only expunged convictions) and any criminal histories that have been resolved through diversion or deferral-of-judgment programs (the ordinance covers only charges).

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.

Voicemail and text messaging are excluded from the definition.

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 may screen applicants for these positions using the Criminal History Matrix  recently issued by the City of Portland. According to the matrix, if an applicant has been convicted of any of the crimes listed therein (or convicted of attempt, conspiracy, or solicitation for any of those crimes), or a crime in another jurisdiction that is substantially equivalent to one of the crimes listed in the matrix, the employer may, without violating the ordinance or the rules, decline to extend or choose to rescind a conditional offer of employment, or otherwise hold an applicant ineligible for a position, for 5 years, 10 years, or permanently, as applicable. If a conviction is not included in the matrix or if the employer opts not to use the matrix, the employer still must comply with the law’s job-relatedness/direct-relationship requirement.

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.

The Portland ban-the-box law and ban-the-box laws in other jurisdictions, including all federal and state background check requirements, are summarized in Ogletree Deakins’ O-D Comply: Background Checks and O-D Comply: Employment Applications subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.