On July 1, 2016, the City of Portland will begin enforcing its own stringent Ban the Box ordinance. Capitalizing on the public momentum favoring Ban the Box legislation, Mayor Charlie Hales re-introduced the ordinance late last year and the City Council passed it unanimously before the year ended. Under the new ordinance, most Portland employers would be forced to delay criminal background checks until after making a conditional job offer. Hales and City Council members support this ordinance as a means of furthering equity and opportunity for workers in Portland.
The new ordinance affects most employers located in Portland, as well as others employing workers in Portland. There are only six exemptions for employers with fewer than six employees; employers required by law to consider criminal history; law enforcement agencies or criminal justice systems; jobs involving direct access to children, the elderly, and persons with disabilities, mental illness, or substance abuse disorders; jobs presenting public safety concerns; and jobs affiliated with government programs encouraging employment of individuals with criminal backgrounds. Under the ordinance, non-exempt employers may not inquire about job applicants' criminal histories until after a conditional offer of employment has been made. This means that employers may not ask about criminal history on the job application or during the entire interview process.
The ordinance does not require employers to hire individuals with a criminal background. However, employers may not consider arrests not leading to conviction, except for unresolved crimes or pending charges; judicially voided or expunged convictions; and charges not involving physical harm or attempted physical harm which have been resolved through the completion of a diversion or deferral of judgment program.
In order to rescind a conditional job offer, employers must assess the relevance of the job applicant's criminal history in relation to the job. This assessment must take into account the nature and gravity of the criminal offense; the time that has elapsed; and the nature of the job.
Until this ordinance goes into effect on July 1, 2016, state law still applies. Affected employers should use this time wisely to consult with legal counsel about compliance audits, training hiring managers, and updating hiring procedures for interviewing, conducting background checks, and making (or rescinding) job offers.
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