Portland’s ban the box law has been in effect since July 1, 2016. The ordinance is more restrictive than the statewide law and applies to employers with at least six employees. Specifically, under Portland’s law, not only are covered businesses barred from including questions about criminal convictions on their job applications, but such questions cannot be asked during the job interview or at any point before a conditional job offer is made. The employer may perform a criminal background check only after making a conditional job offer – an offer that is conditioned solely on the results of a background check or some other contingency that is expressly communicated at the time of the offer.
Once the employer acquires the applicant’s criminal history, the employer must make an individualized assessment of that information. Such an assessment must include consideration of:
- the nature and gravity of the offense or conduct;
- how recently the offense or conduct occurred; and
- the nature of the position for which the applicant has applied.
The administrative rules state that “[a]n 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.” If the employer follows this process and decides to rescind the conditional offer, it must notify the applicant in writing and identify the conviction on which the decision is based.
If you are an employer and need assistance updating your hiring policies or have questions about a particular applicant, please contact a member of our Employment Group: 503-227-1111; http://www.sussmanshank.com/employment