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Oregon Background Check Laws

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Oregon Employment Screening laws

Employers that are either located in Oregon or hiring Oregon residents must abide by the Federal FCRA, and applicable Oregon state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Oregon state laws. This page also contains steps an end-user must take to stay in compliance with Oregon state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on Oregon state laws, please consult your legal counsel.

Background Check Law Ban the Box Law Court Fee

Employment Background Check Laws In Oregon:

Oregon Administrative Code 839-005-0080: Employer Obtainment or Use of Credit History Information: Determining whether Credit History Is Substantially Job-Related.

(1) The determination of whether credit history information is substantially job-related must be evaluated with respect to the position for which the individual is being considered or holds.

(2) Credit history information of an applicant or employee is substantially job-related if:

(a) An essential function of the position at issue requires access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit. Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks and credit or debit card numbers; or

(b) The position at issue is one for which an employer is required to obtain credit history as a condition of obtaining insurance or a surety or fidelity bond.

Ninja's summary

Employers are prohibited from obtaining an employee’s or an applicant’s credit history information, and using that information to make an employment decision, unless there is a significant relationship between the credit history and the position’s duties and qualifications.

Oregon Equal Pay Act of 2017 (Oregon Revised Statutes 652.210).

(1) “Employee” means any individual who, otherwise than as a copartner of the employer, as an independent contractor or as a participant in a work training program administered under the state or federal assistance laws, renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate. However, when services are rendered only partly in this state, an individual is not an employee unless the contract of employment of the employee has been entered into, or payments thereunder are ordinarily made or to be made, within this state.

(2) “Employer” means any person employing one or more employees, including the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter. “Employer” does not include the federal government.

(3) “Rate” with reference to wages means the basis of compensation for services by an employee for an employer and includes compensation based on the time spent in the performance of the services, on the number of operations accomplished or on the quantity produced or handled.

(4) “Unpaid wages” means the difference between the wages actually paid to an employee and the wages required under ORS 652.220 (Prohibition of discriminatory wage rates based on sex) to be paid to the employee.

(5) “Wages” means all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash.

Ninja's summary

Employers may not inquire or seek to obtain an applicant’s salary history. Employers may only confirm an applicant’s past salary after a job offer has been extended where compensation has been proposed.

Oregon Revised Statutes 659A.330: Employee social media account privacy.

(1) It is an unlawful employment practice for an employer to:

(a) Require or request an employee or an applicant for employment to establish or maintain a personal social media account, or to disclose or to provide access through the employee’s or applicant’s user name and password, password or other means of authentication that provides access to a personal social media account;

(b) Require an employee or an applicant for employment to authorize the employer to advertise on the personal social media account of the employee or applicant;

(c) Compel an employee or applicant for employment to add the employer or an employment agency to the employee’s or applicant’s list of contacts associated with a social media website;

(d) Except as provided in subsection (4)(b) of this section, compel an employee or applicant for employment to access a personal social media account in the presence of the employer and in a manner that enables the employer to view the contents of the personal social media account that are visible only when the personal social media account is accessed by the account holder’s user name and password, password or other means of authentication;

(e) Take, or threaten to take, any action to discharge, discipline or otherwise penalize an employee for the employee’s refusal to:

(A) Establish or maintain a personal social media account;

(B) Disclose, or provide access through, the employee’s user name and password, password or other means of authentication that is associated with a personal social media account;

(C) Add the employer to the employee’s list of contacts associated with a social media website; or

(D) Access a personal social media account as described in paragraph (d) of this subsection; or

(f) Fail or refuse to hire an applicant for employment because the applicant refused to:

(A) Establish or maintain a personal social media account;

(B) Disclose, or provide access through, the applicant’s user name and password, password or other means of authentication that is associated with a personal social media account;

(C) Add the employer to the applicant’s list of contacts associated with a social media website; or

(D) Access a personal social media account as described in paragraph (d) of this subsection.

(2) An employer may require an employee to disclose any user name and password, password or other means for accessing an account provided by, or on behalf of, the employer or to be used on behalf of the employer.

(3) An employer may not be held liable for the failure to request or require an employee or applicant to disclose the information specified in subsection (1)(a) of this section.

(4) Nothing in this section prevents an employer from:

(a) Conducting an investigation, without requiring an employee to provide a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on receipt by the employer of specific information about activity of the employee on a personal online account or service.

(b) Conducting an investigation permitted under this subsection that requires an employee, without providing a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, to share content that has been reported to the employer that is necessary for the employer to make a factual determination about the matter.

(c) Complying with state and federal laws, rules and regulations and the rules of self-regulatory organizations.

(5) Nothing in this section prohibits an employer from accessing information available to the public about the employee or applicant that is accessible through an online account.

(6) If an employer inadvertently receives the user name and password, password or other means of authentication that provides access to a personal social media account of an employee through the use of an electronic device or program that monitors usage of the employer’s network or employer-provided devices, the employer is not liable for having the information but may not use the information to access the personal social media account of the employee.

(7) As used in this section:

(a) “Personal social media account” means a social media account that is used by an employee or applicant for employment exclusively for personal purposes unrelated to any business purpose of the employer or prospective employer and that is not provided by or paid for by the employer or prospective employer.

(b) “Social media” means an electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations.

Ninja's summary

Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts.

Update: Feb 2018

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Oregon Ban the Box (HB 3025)

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the applicant has attended their first interview, or if there is no interview, after the applicant has received a conditional offer of employment.

(1) It is an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction.
(2) An employer excludes an applicant from an initial interview if the employer:
(a) Requires an applicant to disclose on an employment application a criminal conviction;
(b) Requires an applicant to disclose, prior to an initial interview, a criminal conviction; or
(c) If no interview is conducted, requires an applicant to disclose, prior to making a conditional offer of employment, a criminal conviction.
(3) Subject to subsections (1) and (2) of this section, nothing in this section prevents an employer from considering an applicant’s conviction history when making a hiring decision.
(4) Subsections (1) and (2) of this section do not apply:
(a) If federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history;
(b) To an employer that is a law enforcement agency;
(c) To an employer in the criminal justice system; or
(d) To an employer seeking a nonemployee volunteer.

Portland Ban the Box

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has received a conditional offer of employment.
PLEASE NOTE: This is different from Oregon’s ban the box law because the City of Portland does NOT allow inquiries into criminal history after a first interview. Those inquiries are only permitted after a conditional job offer has been made!


Update: Feb 2018

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

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