What is “ban the box?”
October 26, 2015
Oregon’s ban the box law, House Bill 3025, was passed in 2015. Oregon is not alone: 13 other states have passed similar laws. The new requirements were put forth to reduce discrimination against applicants with a criminal history.
HB 3025 makes it illegal for employers to ask applicants about their criminal history on employment applications. Instead, employers have to wait until an interview to inquire about an applicant’s criminal history.
The legislation offers an exemption for employers that are required by state or federal law to provide a background check process. Districts are required by state law to perform background checks for all employees, so they are exempt from these new requirements. Districts should remember to justify how an employee’s criminal history is a disqualifier for the position when an applicant is removed solely for criminal convictions.
With HB3025 being signed into law, Oregon has been added to a growing list of states that have “banned the box”. The recent movement to “ban the box” has been in an effort to prevent employers from discriminating against applicants for solely having a criminal conviction. Proponents of the bill want increased access for job applicants with prior criminal convictions. The goal is to remove unrelated criminal history as the cause for someone not being selected for a job.
The legislation makes it an unlawful practice to inquire about an applicants criminal history prior to an interview. Employers that are required by federal, state, or local law to background check applicants are exempt from the requirements of this bill.
HB3025 can be viewed here https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB3025
Federal regulations differ from our states recent legislation. Federal guidance from the EOCC does not make any requirement of employers to “ban the box”. The goal of the guidance is to establish a set of guidelines that ensure that any use of criminal records for employment decisions are related to the job. The EOCC requires there to be a nexus between the applicants job duties and criminal convictions before being disqualified. Employers still have discretion in who they hire, but before disqualifying an applicant with a past conviction consider the crimes severity, recentness, and relation to the job duties.
What to take away
The legislation does not create any new requirements for the hiring process of a district. Districts are required by state law to perform background checks for all employees which establishes an exemption from this legislation. However, if you are disqualifying an applicant because of their criminal history you need to be able to make the connection between how their conviction relates to the job duties or function that they would perform.
Update 4/6/2016: Recently BOLI has raised the issue that Districts may not fall under the requirements to be exempted from the Ban the Box rules. BOLI has indicated that K-12 school districts may not qualify because the Department of Education or Teacher Standards and Practices Commission are responsible for the criminal background checks, not the school district. While BOLI has indicated that K-12 school districts may not qualify for the exemption from the Ban the Box rules, they have not issued any rules or provided any official notice school districts cannot utilize the exemption.
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