The City of Portland and the State of Oregon implemented “Ban the Box” rules in 2016 and Washington just passed a bill that will put similar regulations in place starting this June.  In this article, we highlight the difference between Portland and Oregon’s rules and outline the rules recently passed by the Washington Legislature.

Oregon’s current rule and Washington’s new rule primarily restrict employers from asking about criminal history prior to an initial interview. This information should not be requested on an application and employers must not exclude an applicant from an initial interview solely because of a criminal conviction.

Portland’s rule is more stringent, restricting employers from requesting criminal history until after a conditional offer of employment is made, requiring an individual assessment of the criminal history, and includes specific guidelines on how information can be considered in the hiring decision.

Details about each jurisdiction’s rule are outlined below, followed by additional information for how Portland employers can approach the required individual assessments.

OREGON STATE BAN THE BOX

Effective January 1, 2016:

• Affects most Oregon employers with 1 or more employees. Exemptions exist for State and local jurisdictions, law enforcement agencies, and others.
• Employers must not require an applicant to disclose a criminal conviction on the employment application.
• Employers must not exclude an applicant from an initial interview solely because of past criminal conviction.
• In situations where there is no interview, such as certain seasonal agricultural jobs, employers may not ask about criminal convictions until after extending a conditional offer of employment.
• Asking about criminal convictions before an interview is prohibited, but during or after the interview is not. This achieves the legislation’s goal by ensuring that applicants are not excluded from interviews solely because of past criminal convictions.
• Oregon Bureau of Labor and Industries will be responsible for enforcing Oregon’s state law and there is an administrative penalty process established under the rule. HB 3025 does not, however, create a private right of action that would allow individuals to file lawsuits.
  

WASHINGTON STATE BAN THE BOX

Expected Effective Date June 6, 2018:

• Affects most Washington employers with 1 or more employees. Exemptions exist for law enforcement agencies, employers required under law to consider criminal history, sensitive job positions, volunteer positions, and others.
• Employers may not include any question about criminal history on an application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record, until after the employer initially determines that the applicant is otherwise qualified for the position.
• Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.
• The WA State Attorney General’s Office will enforce the rules, including investigating violations, issuing written civil demands for pertinent documents, implementing rules and pursuing administrative sanctions or filing a lawsuit in the courts for penalties, costs and attorney’s fees.
• Administrative Rules are expected prior to the June effective date and UEA will continue to keep our members updated as additional details are finalized.

PORTLAND, OR BAN THE BOX

Effective July 1, 2016:

• Affects most Portland employers with 6 or more employees, at least one of which must perform a majority of their work within the city of Portland. Exemptions exist for State and local jurisdictions, law enforcement agencies, volunteers and others.
• Employers must not ask about an applicant's criminal history or conduct a background check on an applicant until after a conditional offer of employment has been made. The ordinance also requires that an employer disregard an applicant’s self-disclosure of criminal history until after making a conditional job offer.
• An Employer may rescind a Conditional Offer of Employment based upon an applicant’s criminal history only if the employer determines in good faith that a specific offense or conduct by the applicant is job related for the position in question and a “Business Necessity” must be established, or the position is considered a sensitive position.
• When making a good-faith determination whether a specific offense or conduct by an applicant is job related for the position in question and consistent with business necessity to warrant rescinding a Conditional Offer of Employment, an Employer must conduct an individualized assessment of:
• The nature and gravity of the applicant’s offense or conduct;
• The time that has elapsed since the offense or conduct;
• The position for which the applicant is being considered.
• The Portland City Attorney’s Office has created a Criminal History Matrix to assist employers in making decisions related to sensitive positions.
• Arrests not resulting in convictions, judicially voided or expunged convictions, or charges resolved with diversion or a deferral of judgment on a violation that did not involve physical harm or attempted physical harm to a person, may not be considered.
• If an offer is rescinded, employers must notify the applicant in writing with the relevant criminal convictions on which the decision is based, see “Rescission of Conditional Offer”.
• A complainant has 180 days after the delivery of the notification to file a complaint with the BOLI Commissioner. Complaints filed more than 180 days after such notification are time-barred. Enforcement is by administrative action, and no private right to sue is included.
  
  

Since the Portland rules are significantly more stringent, employers should be careful to review their processes to ensure they are abiding by the limitations. Inquiries about unexplained gaps in employment may now be considered impermissible “fishing” for criminal history information.

For non-sensitive positions, with the requirement for an “individualized assessment,” employers should evaluate whether a particular conviction actually raises current concerns for the position. Employers are expected to differentiate between felony and misdemeanor convictions, remote and recent convictions, and positions for which the essential functions do or do not justify exclusion based on business necessity. For example, a decades-old conviction for misdemeanor drug possession likely would not be relevant for a position as a bartender. In contrast, a recent conviction for motor vehicle theft still may be relevant for a sales position at a car dealership.

Due to the complexity of the rules, Members should contact UEA’s attorneys on our Employer Helpline if they would like to discuss any specific hiring decisions.