Oregon Law on Employer Use of Arrest and Conviction Records in Hiring

An estimated 65 million Americans have a criminal record. That's about one out of every four people of working age. If you are one of them, you might be in for a difficult job search. Surveys show that a majority of employers—92%, according to one survey—check criminal records when hiring for some or all jobs. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to get work, especially in the current economic climate.

Job seekers with criminal records have some legal rights, however. Federal and state laws place some limits on how employers can use these records in making job decisions. Oregon law gives applicants some protections in this situation, too.

Oregon Law on Use of Criminal Records

Oregon is one of a growing number of states with a ban-the-box law. The law prohibits all Oregon employers from asking applicants about criminal history until the first interview—or if there is no interview, until a conditional job offer has been made (Or. Rev. Stat. Ann. §§ 659A.030, 659A.360).

Oregon law also prohibits employers from discriminating against an applicant or employee on the basis of an expunged juvenile record, unless the decision is based on a bona fide occupational qualification that's reasonably necessary to the normal operation of the employer's business.

Federal Protections for Applicants With a Criminal Record

There are two federal laws that provide additional protections for applicants with criminal records. Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring; the Fair Credit Reporting Act addresses the issue of accuracy of criminal background checks.

Title VII: Discrimination Based on Criminal Records

Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination, even if that is not the employer's intent.

The federal agency that enforces Title VII – the Equal Employment Opportunity Commission (EEOC)—has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

• the nature and gravity of the criminal offense or conduct
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on), and
• how much time has passed since the offense or sentence.

The EEOC also has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

The Fair Credit Reporting Act: Inaccurate Records

The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as information on convictions that have been expunged, multiple listings of the same offense, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, and even records that belong to someone else entirely.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:

• Get the applicant's written consent ahead of time.
• Give the applicant notice, and a copy of the report, if the employer intends to disqualify him or her based on the contents of the report.
• Give the applicant notice after the employer makes a final decision not to hire him or her based on the information in the report.

The FCRA also imposes obligations on firms that run background checks for employers. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.