It’s been an active legislative session in Oregon this year regarding laws affecting the state’s employers. Hot on the heels of enacting laws relating to paid sick leave, noncompete agreements, and employee privacy on social media, Governor Kate Brown also recently signed into law House Bill 3025. That law will make it illegal for most employers to ask employment applicants criminal history questions on employment applications. The new Oregon law takes effect January 1, 2016.
Oregon becomes the most recent of a number of states that have passed similar “ban the box” laws. Under HB 3025, it will be illegal for most employers to ask job applicants criminal history questions on employment applications. Note that this does not mean that employers cannot use information regarding criminal history at all; just not on an initial application. Criminal history questions still will be permissible at the initial interview or, absent an interview, may be asked after a conditional offer of employment has been made. Further, nothing in the Oregon legislation prohibits criminal background checks generally as part of the employment application process.
The legislation does not provide for a private right of action; administrative charges may be filed with the Oregon Bureau of Labor and Industries.
In addition to state and local “ban the box” laws like Oregon’s HB 3025, employers should also be mindful that over the past few years the U.S. Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers’ overly broad use of criminal background checks can violate Title VII of the Civil Rights Act of 1964, because, the EEOC believes, such checks can have a “disparate impact” on job applicants of some racial groups, particularly Hispanic or African American applicants. But as we have blogged about before, the EEOC’s interpretation that Title VII limits use of criminal background checks has been met with skepticism in the courts.
Oregon employers should review now their employment applications and their employment application processes to begin to get ready for the law’s implementation in 2016. Generally, criminal history questions should be removed from written or on-line employment applications. Managers who hire should be trained as to the appropriate scope and timing of criminal history inquiries.