['Recruiting and hiring']
['Negligent Hiring / Retention']
06/13/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Oregon, a former employer may disclose to a prospective employer upon request of the prospective employer or the former employee information about employee job performance, unless he/she is not acting in good faith. An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer:
- Disclosed knowingly false or intentionally misleading information,
- Disclosed information with malicious intent, or
- Violated a former employee civil right.
An employer may not blacklist a discharged employee in order to prevent him/her from obtaining or keeping employment. An employer may not use correspondence in order to prevent a discharged employee from obtaining employment.
Arrest record inquiries
In Oregon, employers other than criminal justice agencies may request from the Department of State Police arrest information less than one year old where there was no acquittal or dismissal; however:
- The employer must let the applicant or employee know that the information may be requested; and
- The employer must let the Department know that the applicant or employee has been informed of the request, as well as how they were informed.
The Department will notify the individual of such a request, using the last known address. This notification will contain a copy of the criminal information and the rights of the individual to challenge inaccurate information and not to be discriminated against based on arrest records alone. The requesting employer will receive any arrest information 14 days after this notification. All arrests older than one year for which there is not conviction shall not be shared and a “no criminal record” notification will be sent to a requester. The Department creates public record lists of names of employers (other than criminal justice agency names) that request information, along with the names of the persons about whom they are requesting information.
An employer may only refuse to hire/employ a person based on an expunged juvenile record if there is a necessary occupational requirement.
According to the fact sheet, “Pre-employment Inquiries Q & A,” published by the Oregon Bureau of Labor and Industries, employers should avoid questions about things that could be used to reject protected groups. The fact sheet does not specifically mention arrests, however.
Designated state, county, or municipal government agencies who request criminal offender information from the Department of State Police, must follow Oregon Revised Statute 181.557.
This differs from the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Oregon, employers other than criminal justice agencies may request conviction information from the Department of State Police; however:
- The employer must let the applicant or employee know that the information may be requested; and
- The employer must let the Department know that the applicant or employee has been informed of the request, as well as how they were informed.
The Department will notify the individual of such a request, using the last known address. This notification will contain a copy of the criminal information and the rights of the individual to challenge inaccurate information and not to be discriminated against based on arrest records alone. The requesting employer will receive any conviction information 14 days after this notification. The Department creates public record lists of names of employers (other than criminal justice agency names) that request information, along with the names of the persons about whom they are requesting information.
An employer may only refuse to hire/employ a person based on an expunged juvenile record if there is a necessary occupational requirement.
According to the fact sheet, “Pre-employment Inquiries Q & A,” published by the Oregon Bureau of Labor and Industries, employers should avoid questions about things that could be used to reject protected groups. The fact sheet does not specifically mention convictions, however.
Designated state, county, or municipal government agencies who request conviction information from the Department of State Police, must follow Oregon Revised Statute 181.557.
This differs from the EEOCs Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Conviction record inquiries
Regulations
Employer immunity from disclosure claims
Oregon Revised Statute 30.178, Actions against former employer for disclosure of information
www.oregonlegislature.gov/bills_laws/ors/ors030.html
Oregon Revised Statute 659.800, Use of force or misrepresentation to prevent employment prohibited
www.oregonlegislature.gov/bills_laws/ors/ors659.html
Oregon Revised Statute 659.805, Blacklisting and blackmailing prohibited
www.oregonlegislature.gov/bills_laws/ors/ors659.html
Arrest record inquiries
Oregon Revised Statute 181.555, Establishment of procedures for access to criminal record information
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statute 181.557, Procedure when information requested by designated agency,
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statute 181.560, Procedure when information requested by other than criminal justice agency
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statue 659A.030, Discrimination because of race, religion, color, sex, national origin, marital status or age prohibited
www.oregonlegislature.gov/bills_laws/ors/ors659a.html
Conviction record inquiries
Oregon Revised Statute 181.555, Establishment of procedures for access to criminal record information
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statute 181.557, Procedure when information requested by designated agency,
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statute 181.560, Procedure when information requested by other than criminal justice agency
www.oregonlegislature.gov/bills_laws/ors/ors181.html
Oregon Revised Statue 659A.030, Discrimination because of race, religion, color, sex, national origin, marital status or age prohibited
www.oregonlegislature.gov/bills_laws/ors/ors659a.html
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.