Portland City Council Schedules Ban the Box Ordinance Hearing

Posted: March 24, 2015

On Wednesday, March 25, the Portland City Council will discuss a proposed ban the box Ordinance per a request from Portland Mayor Hales. The proposed Ordinance contains language that, if passed, will impact private employers with employees in Portland, Oregon.

Note: It is important to remember that this is a proposed Ordinance and is not yet final. There is no guarantee this Ordinance will pass, and changes may occur to the legislation. Employers hiring in Portland, Oregon are encouraged to track this legislation closely.

As outlined in the proposed Ordinance, “employer” includes any person or entity that employs six or more employees within the city of Portland. “Employment” includes seasonal, temporary or contracted work, work through the services of a temporary or other employment agency, or any form of vocational or educational training, with or without pay.

The proposed Ordinance prohibits covered employers from considering an individual’s criminal history until after a conditional offer of employment has been extended. An employer may only rescind the conditional offer or take another “adverse employment action”[1] based upon the individual’s criminal history if the employer makes a good faith determination that the criminal history has a direct relationship to the individual’s ability to perform the duties and responsibilities of the position.

In order to make this good faith determination, the proposed Ordinance requires employers to conduct an individualized assessment considering: the nature and gravity of the offense, the time that has elapsed since the offense took place and the nature of the employment held or sought. If an individual voluntarily discloses during an interview any information regarding his/her criminal history, the employer must still conduct the required individualized assessment.

Further, the proposed Ordinance would mandate specific adverse action protocol if an employer decides to make an adverse employment decision after conducting an individualized assessment. This protocol includes providing a written notice of the adverse employment decision (hand delivered, emailed or mailed). This written notice must include a written copy of the criminal history report used to make the decision in addition to a note describing the individual’s right to request reconsideration of the decision based on any mitigating factors and to offer evidence of rehabilitation within two business days of the notice. Further, the written notice must notify the individual of the right to file an administrative complaint within the City of Portland and the time limit for doing so.

If an individual requests reconsideration in a timely manner, the employer has two business days to reconsider the adverse employment decision and must conduct a secondary individualized assessment of any relevant evidence provided by the individual including (but not limited to): the number of offenses committed, the length and consistency of employment history before and after the conduct, and the individual’s successful participating in rehabilitation efforts. If no further change to the adverse employment decision is made, the decision becomes final after four business days following the initial written notice.

In addition, the proposed Ordinance prohibits the employer from considering: arrests not leading to a conviction (except if the case is pending or unresolved), convictions that have been expunged or judicially voided or charges that have been resolved through the completion of a diversion or deferral of judgment program.

[1] As defined in the proposed Ordinance, an adverse employment action means to discharge a person, or decline to hire or promote a person, or to revoke a person’s Conditional Offer of Employment.

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