Ban the Box Update- Oregon

As many of you know, more and more cities and states across the country are beginning to instill Ban the Box laws, restricting employers from asking their job applicants about their criminal history.  Oregon is the most recent state to incorporate such laws and it is imperative that businesses in Oregon comply with the new regulations.  Following is a summary of the regulations and a quick look at the new laws.

Oregon

• As of January 1, 2016, Oregon businesses cannot include any questions asking applicants about criminal histories on their job applications.  These questions can be asked during the interview process.

• Oregon employers need to review their job applications to ensure such questions are removed.

Portland

• Effective July 1, 2016, most businesses operating in Portland will be prohibited from asking prospective job applicants about their criminal history until after a conditional offer has been made.

• Additionally, these questions cannot be asked at the job interview or at any point before a conditional offer is made.

• Additionally, employer will not be allowed to inquire about or access an applicant’s criminal history from any source before making “a conditional offer of employment.”

• Conditional Offer of Employment is defined as any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of offer.

• If an employer learns of an applicant’s criminal history after making a conditional job offer, the employer can rescind the offer after determining that rejecting the applicant would be job related and consistent with business necessity.

• The new law does not cover businesses with fewer than six employees.  Any businesses with more than six employees are covered if they have workers who perform a majority of their time within the City of Portland.

Suggestions for Remaining Compliant

• Review and update your job applications as soon as possible.  Ensure that any and all questions pertaining to the applicant’s criminal history are removed.

• Make sure that the necessary personnel, such as hiring managers, are trained and informed of these laws.

• Do not request a criminal background check until a conditional job offer is made.  Review your authorization page and be sure to indicate that a background check will not be conducted of the applicant until a conditional offer is made.  Of course, make sure you have received signed authorization from the applicant before requesting a background check.

• Conduct individualized assessments of your applicants.  Start preparing for instances when an applicant voluntarily discloses having a criminal history, and be ready to make an assessment based on the situation at hand.  The Portland ordinance requires employers to consider the nature and seriousness of the criminal history and the time elapsed since the most recent crime(s).  Other considerations are the applicant’s age at the time of the crime(s), the applicant’s entire work and educational history, and employment references since the last crime(s) occurred.

• Make sure you have sufficient documentation procedures in place.  Be sure to document all stages of the hiring process and make sure all documents are dated.  Provide a dated document to applicants informing them of the conditional job offer and the remaining steps required before the offer is finalized.  Include the criminal background check and any other contingencies associated with the position.  Should you decline an offer, it is suggested that employers create an internal document explaining the decision-making process that addresses the facts and reasons that contributed to the decision to reject the applicant.

To read the full article by SHRM, please click here.


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