Oregon is the latest state to “ban the box” for private employers.  Starting January 1, 2016, an employer may not require an applicant to disclose a criminal conviction on an employment application or at any time prior to an initial interview.  If the employer does not conduct an interview, then the employer may not require the applicant to disclose a criminal conviction prior to making a conditional offer of employment.

The law provides exceptions:

  • where federal, state, or local law (including applicable rules and regulations) requires consideration of an applicant’s criminal history;
  • for law enforcement agencies;
  • for employers in the criminal justice system; and
  • for employers seeking a nonemployee volunteer.

The law empowers Oregon’s Commissioner of the Bureau of Labor and Industries with enforcement authority.

To date, six other states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and eleven municipalities—Baltimore, Buffalo, Chicago, Columbia (Missouri), D.C., Montgomery County (Maryland), Philadelphia, Prince George’s County (Maryland), Rochester, San Francisco, and Seattle—have banned the box for private employers.

Oregon employers should begin removing any inquiries concerning an applicant’s criminal history from their employment applications, and should wait to commence a criminal background check until after conducting an initial interview of the candidate or until after making the candidate a conditional offer of employment. When permitted to make criminal inquiries, employers should remember to conduct individualized assessments of candidates when possible, and to adhere to any other applicable federal, state, and local requirements.

Katharine Parker and Daniel Saperstein are Co-Chairs of Proskauer’s Hiring & Background Checks Group.