Portland Ban the Box Ordinance & Administrative Rules in Effect

Posted: July 12, 2016

As of July 1, 2016, employers with six or more employees in Portland, Oregon must ensure compliance with City’s ban the box Ordinance. One of the stricter ban the box laws in the country, further clarification to the Ordinance’s requirements and prohibitions was provided via the Administrative Rules. Designed to be “liberally construed”, the Administrative Rules expand on concepts within the Ordinance such as the following:

• Conditional Offer: Before making a conditional offer, an employer may not gather information related to the applicant’s criminal history which includes performing a criminal background check. If the applicant self-discloses before an offer, an employer must disregard the information and cannot base its decision on that information.
• Adverse Action: Before taking adverse action, an employer must notify the applicant of the decision in writing and must identify the specific criminal history on which the offer rescission is based.
• The Administrative Rules define “in writing” to include in-person delivery of a paper document, mailing a paper document through the postal or private courier service, e-mail and any other means by which the individual receives permanent record of the notification. It does not include voicemail or text messages.

• Exhibit B of the Administrative Rules provides a sample notice for the rescission of a conditional offer.

• Sensitive Positions: Employers hiring for a “sensitive” position may consider an individual’s criminal history at any point in the process, and may use the “Criminal History Matrix” provided by the city to screen individuals.
• Examples of these positions include: persons with direct access to children, the elderly or individuals with disabilities, drivers of goods, equipment, personal property and persons, and tow truck operators.

Finally, the Administrative Rules clarify that there is no private right of action under the Ordinance meaning an individual could not file an action in court against an employer. Instead complaints must be filed with the Commissioner of the Bureau of Labor and Industries.