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Chapter 23.10 Removing Barriers to Employment

City Code Chapter

(Chapter added by Ordinance No. 187459, effective December 25, 2015.)

23.10.010 Purpose.

The purpose of this Chapter is to remove barriers to employment so that people with criminal histories can provide for themselves and their families; to reduce disparate impacts on people of color that result from the use of criminal history information in hiring and employment decisions; and to reduce recidivism through the reintroduction of formerly incarcerated persons into community life.

23.10.020 Definitions.

(Amended by Ordinance No. 187678, effective May 13, 2016.)  For purposes of this Chapter, the following definitions apply:

A.  “City” means the City of Portland as defined in Title 1 of the Code of the City of Portland.

B.  “Employer” means any person or entity who directly or through an agent employs another for a position being performed a majority of the time within the City of Portland, but does not include:

1.  The United States Government;

2.  The State of Oregon and any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary;

3.  Any political subdivision of the State of Oregon or any county, city, district, authority, public corporation or public entity other than the City of Portland; or

4.  Employers with fewer than six employees.

C.  “Employ” means to engage or use the personal service of another person on a full-time, part-time, temporary or seasonal basis, where the Employer reserves the right to control the means by which such service is performed.

D.  “Conditional Offer of Employment” means any offer for a position that is conditioned solely on:

1.  The results of an Employer’s inquiry into or gathering of information about a person’s arrest or conviction history; and/or

2.  Some other contingency expressly communicated to the applicant at the time of the offer.

23.10.030 Use of Criminal History in Employment Decisions.

A.  It is an unlawful practice for an Employer to exclude an applicant from consideration solely because of the applicant’s criminal history.

B.  An Employer may consider an applicant’s criminal history in the hiring process only after making a Conditional Offer of Employment.  An Employer violates this Chapter if an Employer accesses an applicant’s criminal history prior to making a Conditional Offer of Employment.

C.  It is not an unlawful practice for an Employer to rescind a Conditional Offer of Employment based upon an applicant’s criminal history if an Employer determines in good faith that a specific offense or conduct is job related for the position in question and consistent with business necessity.

D.  In making the determination of whether an applicant’s criminal history is job related for the position in question and consistent with business necessity, an Employer must conduct an individualized assessment of:

1.  The nature and gravity of the criminal offense;  

2.  The time that has elapsed since the criminal offense took place; and

3.  The nature of the Employment held or sought.

E.  Nothing in this Section prevents an employer from considering an applicant’s criminal history after making a conditional offer of employment, except that an employer shall not consider:

1.  An arrest not leading to a conviction, except where a crime is unresolved or charges are pending against an applicant;

2.  Convictions that have been judicially voided or expunged; or

3.  Charges that have been resolved through the completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm to a person.

F.  If, after consideration of an applicant’s criminal history an employer rescinds the conditional offer of employment, the employer shall notify the applicant in writing of its decision and shall identify the relevant criminal convictions on which the decision is based.

23.10.040 Exceptions.

A.  The prohibitions in this Chapter do not apply:

1.  If federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history;

2.  To an employer that is a law enforcement agency;

3.  To an employer in the criminal justice system; or

4.  To an employer seeking a nonemployee volunteer.

B.  For the following positions, an Employer may consider an applicant’s criminal history at any point in the hiring process, and may use the City Criminal History Matrix provided by administrative rule to screen applicants, but must nonetheless comply with all other requirements of this Chapter.  An individualized assessment shall be required for any criminal convictions not contained on the City Criminal History Matrix.

1.  Positions involving direct access to or the provision of services to children, the elderly, persons with disabilities, persons with a mental illness, or individuals with alcohol or drug dependence or substance abuse disorders;

2.  Positions which have been determined by administrative rule to present heightened public safety concerns or a business necessity;

3.  Positions designated by the Employer as part of a federal, state or local government program designed to encourage the employment of those with criminal histories.

23.10.050 Administrative Rules Implementing this Chapter.

A.  The City Attorney shall draft rules, procedures and forms to assist in the implementation of the provisions of this Chapter and bring these rules, procures and forms before Council for authorization.

B.  All rules adopted to implement this Chapter shall be subject to a public review process.

C.  Not less than 10 or more than 30 days before such public review process, a notice shall be published in a newspaper of general circulation and sent to stakeholders who have requested notice.  The notice shall include the place and time, when the rules will be considered and the location at which copies of the full text of the proposed rules may be obtained.

D.  The duration of public review process shall be a minimum of 21 calendar days from the date of notification for written comment.

E.  During the public review process a designee of the City shall hear testimony or receive written comment concerning the proposed rules.

F.  The City shall review and consider the comments received during the public review process, and shall either adopt, modify, or reject the proposed rules.  

G.  All initial rules shall be effective July 1, 2016, and all subsequent rules shall be effective 30 days after adoption by the City Attorney and shall be filed in the Office of the City Auditor.

H.  Notice of changes in Administrative Rules shall be published in a newspaper of general circulation, sent to stakeholders who have requested notice and posted on the BOLI and City web sites.

23.10.060 Enforcement.

A.  The City may contract with BOLI to enforce this Chapter.

B.  Pursuant to agreement between BOLI and the City, enforcement may be governed by the procedures established pursuant to ORS 659A.820 through 659A.865, or such other procedures as may be agreed upon by BOLI and the City.  Rules adopted by the City pursuant to Section 23.10.050 of this Chapter may also be used to implement enforcement and administration of this Chapter.

C.  Pursuant to agreement between BOLI and the City, any person claiming to be aggrieved by an unlawful employment practice under this Chapter, the State Attorney General or the City Attorney may file a complaint with BOLI under procedures established under ORS 659A.820 through 659A.865, or such other procedures as BOLI or the City may establish for taking complaints which shall include options for resolution of complaints through such means as mediation.

D.  Pursuant to agreement, BOLI shall have the same enforcement powers with respect to the rights established under this Chapter as are established under ORS 659A.820 through 659A.865, and if the complaint is found to be justified, the complainant may be entitled to any remedies provided under ORS 659A.820 through 659A.865, and their implementing regulations and any additional remedies, provided that those remedies are specified in the agreement between the City and the BOLI Commissioner.

23.10.090 Severability.

If a provision of this Chapter or application thereof to any person or circumstance is judged invalid, the invalidity shall not affect the other provisions or application of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared severable.

23.10.100 Application.

This Chapter is effective immediately for drafting of the administrative rules under Section 23.10.050, contracting with BOLI under Subsection 23.10.060 A. and public education and outreach under Section 23.10.080.  Enforcement of this Chapter under Subsection 23.10.060 B., C. & D. shall commence July 1, 2016.