BY AMY ROBINSON & CAROLYN PEARSON
On January 1, 2016, Oregon’s House Bill 3025 (you have heard of it as the “Ban the Box” legislation) goes into effect and prevents employers from asking applicants to disclose criminal history when they apply. If you aren’t familiar with the term “Ban the Box,” it refers to the movement that was instituted some years ago by advocates seeking to end the employment practice of requiring applicants to check a box on an application indicating whether the applicant has a criminal history.
Oregon law will now make it unlawful for an employer to exclude an applicant from an initial interview because of his/her criminal history, or to otherwise require a job applicant to disclose his or her criminal history on the employment application or prior to an initial interview. It does not, however, prevent an employer from considering a candidate’s criminal history at all when making a hiring decision. Instead, the employer may ask about a candidate’s criminal history only at or after the initial interview, or if there is not an interview, then after a conditional offer of employment is made.[i]
The new law does not apply where federal, state, or local law requires the consideration of an applicant’s criminal history (for example, Oregon Law requires criminal background checks for those who provide direct care in adult foster homes, residential facilities, and hospice programs and for those who provide services on behalf of home health agencies where direct contact with patients may be involved[ii]), or to law enforcement agencies and other employers within the criminal justice system.
So, what do Oregon employers need to do now?
- Update employment applications and hiring policies by January 1, 2016, to ensure they aren’t inquiring about an applicant’s criminal history any sooner than the law allows.
- Educate those involved in the hiring process so they are familiar with the requirements of the law and prepared to comply.
- Remember, if you do conduct a criminal background check, or work with an agency that does, you need to be sure to comply with the requirements of the Fair Credit Reporting Act, which likely mandate certain notice, appeal, and timelines.[iii]
[i] Just a reminder, the federal Equal Employment Opportunity Commission (EEOC) still recommends that employers ensure that there is a legitimate, job-related basis to consider an individual’s criminal history before excluding him or her from certain employment opportunities. Refer to our prior newsletter article regarding the EEOC Guidance on the Use of Arrest and Conviction Records in Employment, available online here.
[ii] See ORS 443.004.