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Oregon Wants to Ban the Box and Much More

By Michael Klazema on 4/6/2015

House Bill 3025

House Bill 3025 defines “employer” to mean any person, company, corporation, firm, labor organization, or association that regularly employs one or more employees, any person acting directly or indirectly as an agent of an employer, or any person undertaking compensation to procure employees or opportunities for employment.

This bill applies to “employment” which is defined much more broadly than traditional employment. Employment is defined as any occupation, vocation, job, work, or other services for an employer with or without pay, including temporary or seasonal work, contracted work, contingent work, work through the services of a temporary or other employment agency or any form of workplace vocational or educational training. This appears to cover volunteers and individual contractors.

The bill would make it an unlawful employment practice for employers to:

  • Inquire into or consider in any way an applicant’s conviction history, unless limited exceptions apply;
  • Use job application forms and employment descriptions that do not inform an applicant that he or she is subject to a background check for convictions directly related to the position and that unless otherwise required by law, only job-related convictions will be considered and will not automatically disqualify the applicant from employment;
  • Conduct a background check on an applicant unless it is required by law or the employer has made a good faith determination that the relevant position is of such sensitivity that a background check is warranted;
  • Conduct a background check prior to sending the applicant a conditional offer letter, notice of rights, and a notice that the employer has determined that a background check is warranted or required by law;
  • Use or consider: (a) records of arrest that did not result in a conviction, (b) records of conviction that have been sealed; (c) an action that has been dismissed; (d) expunged convictions; (e) misdemeanor convictions for which no jail sentence may be imposed; and (f) infractions.
  • Disqualify an individual from employment solely or in part because of a prior conviction, unless the conviction is job-related or is a conviction that legally bars the employment of the individual.

If a background check is conducted and contains information that may be the basis for an adverse employment action, employers will be required to provide the applicant with: (a) a written explanation of how the conviction affected the adverse action; (b) a copy of the background check report; and (c) examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide to be reconsidered for the position.

House Bill 3097

House Bill 3097 is very similar to bill 3025, but some differences are worth mentioning. This bill applies to employers with five or more employees. All of the “unlawful employment practices” are the same, except that the first one prohibits employers from using “job applications” to inquire into an applicant’s conviction history instead of the broad language in bill 3025 that states, “Inquire into or consider in any way  an applicant’s conviction history…” Another difference is this bill allows 10 business days for applicants to provide mitigation and rehabilitation evidence, while bill 3025 allows four business days. Further, bill 3097 gives the Oregon Department of Administrative Services authority to set rules for how employers consider criminal history instead of points (3), (4) and (6) above.

Common Points

This legislation stems from the ban-the-box movement which seeks to prohibit employer access to and use of criminal history of applicants and employees. These particular Oregon bills are very burdensome in that they would largely prohibit employers from inquiring into the criminal history records of applicants without the employer abiding by a long list of requirements.

  • Employers will have to make a good faith determination that the position is fit for a category of individuals who are subject to criminal history record checks.
  • Employers will have to hold open a position until a final employment decision is made.
  • Employers will have to inform applicants who are not offered employment of any other positions for which the applicant may be eligible.
  • Employers would be prohibited from considering pending court cases and criminal charges where the defendant is currently on probation without a conviction.
  • Applicants will be able to appeal an adverse action to the Oregon Commission of the Bureau of Labor and Industries.
  • Employers would be subjected to lawsuits by anyone believing a violation of the law has occurred.
  • Both bills stipulate an immediate effective date, if passed.

Oregon’s legislative session is short, ending July 13, 2015. So, if you oppose this legislation, you should contact your legislator or trade association right away to voice your opposition.

What This Means To You:

  • Oregon wants to make it illegal to inquire into the criminal history of applicants until after a conditional offer of employment is made and other requirements are met.
  • Oregon wants to place additional requirements on employers when a decision not to hire is made, based entirely or partially, on an applicant’s criminal history.
  • Oregon wants to allow applicants to sue employers that may have violated the law.

House Bill 3025 is available for review here: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB3025/Introduced 
House Bill 3097 is available for review here: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB3097/Introduced

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