Oregon and NYC Advance Ban the Box Legislation

Posted: June 16, 2015


2015 is proving to be an active year as it relates to legislation passed impacting employers and their hiring processes. In particular, ban the box laws have continued to advance at the city, county and state level creating a convoluted patchwork of laws that poses numerous challenges for multijurisdictional employers. Two jurisdictions – Oregon and New York City – have recently taken notable steps towards enacting ban the box legislation. Oregon On June 16, HB 3025 took a step forward as the Oregon House of Representatives voted to repass the bill with the Senate amendments intact. HB 3025 is now currently awaiting enrollment. The current version of this legislation represents a far more “traditional” version of a ban the box law that strictly focuses on the timing of the criminal history inquiry. Under the legislation, employers are prohibited from excluding an individual from an initial interview based solely on the existence of a past criminal conviction. Essentially employers may not require individuals to disclose criminal conviction information on an employment application, prior to an initial interview or, if no interview is conducted, prior to extending a conditional offer of employment. The legislation does not prevent employers from considering an individual’s criminal conviction history when making a hiring decision and does not mandate any additional requirements during the adverse action process. There are several exemptions under HB 3025, including if the consideration of criminal history is required by federal, state or local law. UPDATE: Governor Kate Brown signed the bill into law on June 25th. The Ban the Box law will take effect on January 1, 2016. New York City The New York City Council has been particularly active the last few months, passing numerous items of legislation that impact private employers. (See prior Compliance Corner posts addressing the prohibition of the use of credit history information and the new employment discrimination testing program). On June 10th, the NYC Council passed Int 0318-2014 with a vote of 45-5. This ban the box legislation is relatively broad compared with more traditional ban the box laws that simply govern the timing of the criminal history inquiry in the hiring process. Note: Mayor de Blasio has not yet signed the legislation as of the date of this article; therefore, this law is not currently in effect. The law will become effective 120 days after the Mayor’s signature. Under the newly passed legislation – which applies to companies with four or more employees – employers are prohibited from inquiring into pending arrest information or criminal conviction records until after a conditional offer of employment is extended. Employers are also barred from conducting a search of publicly available records or obtaining a criminal background check until the conditional offer stage. The legislation also imposes numerous requirements if an employer is considering taking adverse action based on the individual’s arrest or conviction record. Specifically, the legislation requires the employer to provide a written copy of the inquiry to the applicant, perform an analysis as outlined by Article 23-A and provide a copy of that analysis to the applicant. Once those steps are completed, the employer must hold the position open and wait at least three business days to allow the applicant time to respond. Employers are also barred from publishing or circulating any job advertisement that directly or indirectly notes that individuals with criminal history may not be eligible for employment. The legislation contains certain exemptions such as those employers that have a state, federal or local law that requires criminal background checks and police or peace officers.1