Written By ESR News Blog Editor Thomas Ahearn
The Portland (Oregon) City Council has unanimously passed a “Ban the Box” ordinance that will prevent employers from asking job applicants about their conviction history on applications or during interviews in order to eliminate barriers to employment for applicants with criminal backgrounds. This Ban the Box ordinance and its administrative rules will go into effect on July 1, 2016.
According to a FREQUENTLY ASKED QUESTIONS memorandum available from the Office of Portland Mayor Charlie Hales, the Ban the Box ordinance requires employers to delay the timing of background checks until a conditional job offer is made to an applicant with a criminal background check as a condition of employment. The purpose of the Ban the Box ordinance is:
- To remove barriers to employment so that applicants with criminal histories can adequately provide for themselves and their families;
- To reduce disparate impacts on people of color that result from the use of criminal history information in hiring and employment decisions; and
- To reduce recidivism through the reintroduction of formerly incarcerated individuals into community life.
Nothing in the Ban the Box ordinance requires that employers hire an applicant with a criminal background. However, the Ban the Box ordinance does prevent employers from considering the following things that may appear on an applicant’s background check:
- An arrest not leading to a conviction, except where a crime is unresolved or charges are pending;
- Convictions that have been judicially voided or expunged; or
- Charges not involving physical harm or attempted physical harm that have been resolved through the completion of a diversion or deferral of judgement program.
If an employer decides to make an adverse employment decision based on the results of a background check, the Ban the Box ordinance requires the employer to notify the applicant in writing and identify the relevant criminal convictions on which the adverse employment decision is based. This may be as simple as including a print out of the background check with the relevant convictions highlighted.
There are several categories that would make an employer exempt from the Ban the Box ordinance:
- If the employer has fewer than six employees;
- If federal, state or local law requires that the employer consider an applicant’s criminal history;
- If the employer is a law enforcement agency, in the criminal justice system, or seeking a non-employee volunteer;
- If the position the employer is hiring for involves the direct access or provision of services to children, the elderly, persons with disabilities, persons with mental illness, or individuals with alcohol and drug dependence or substance abuse disorders;
- If the position the employer is hiring for has been determined by administrative rule to present public safety concerns or a business necessity;
- If the position the employer is hiring for is designated as part of a federal, state, or local government program designed to encourage the employment of applicants with criminal backgrounds.
The City of Portland will contract with the Bureau of Labor and Industries (BOLI) to enforce the Ban the Box ordinance. If an applicant applying for a job in Portland, Oregon believes that a business has violated the Ban the Box ordinance, they should contact BOLI by calling 971-673-0764 or filing a complaint online at http://www.oregon.gov/boli/CRD/Pages/C_Crcompl.aspx.
If an applicant files a complaint against an employer, that employer will be contacted by a BOLI representative who will review and investigate the complaint. If the BOLI Commissioner has reason to believe that a violation of the Ban the Box ordinance has occurred, the following may occur:
- A finding of substantial evidence will be issued to the employer;
- The commissioner may take immediate steps to settle the matter through conference, conciliation and persuasion, to eliminate the effects of the unlawful practice;
- The commissioner may hold a hearing in which findings of facts and conclusions of law may be issued;
- The commissioner may issue a temporary cease and desist order, requiring the employer to refrain from the unlawful practice alleged;
- The commissioner may impose a civil penalty upon the employer, not to exceed $1,000.
As reported earlier on ESR News, the Oregon State Legislature also passed a Ban the Box law that takes effect January 1, 2016. The State of Oregon legislation prohibits employers from inquiring about criminal backgrounds of applicants on their applications or prior to the first interview while the City of Portland’s law prohibits employers from inquiring into criminal backgrounds before the conditional job offer.
The National Employment Law Project (NELP) estimates that approximately 70 million people in the United States have arrest or conviction records. Many employers refuse to consider any applicants with criminal records. Many help-wanted advertisements disqualify those with criminal records. In addition, routine criminal background checks by employers have increased dramatically in recent years.
Ban the Box is the name of an international campaign by civil rights groups and advocates for ex-offenders aimed at persuading employers to remove the check box that asks if applicants have a criminal record from their hiring applications. The Ban the Box movement is spreading rapidly in the United States and currently includes more than 100 cities and counties as well as 17 states.
More Ban the Box Information from ESR
Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide background check firm accredited by the National Association of Professional Background Screeners (NAPBS). ESR offers a Ban the Box Information Page with links to news and resources about the Ban the Box movement. To learn more, visit www.esrcheck.com/Ban-the-Box.
© 2015 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.