Oregon ban-the-box law: ORS 659A.360 for recruiters

Oregon's ban-the-box law, ORS 659A.360, makes it an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction. In practice that means no conviction question on the application and no requirement to disclose a conviction before the initial interview, or, if there is no interview, before a conditional offer. After that, the statute expressly lets the employer consider conviction history in the hiring decision. It covers employers of one or more people, acting directly or through an agent, and the Bureau of Labor and Industries enforces it.

The statute

ORS 659A.360 was enacted in 2015 (2015 c.559). Its four subsections:

1. "It is an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction."
2. An employer excludes an applicant from an initial interview if it (a) requires the applicant to disclose a criminal conviction on an employment application, (b) requires disclosure of a conviction before an initial interview, or (c) if no interview is conducted, requires disclosure before making a conditional offer of employment.
3. Subject to (1) and (2), "nothing in this section prevents an employer from considering an applicant's conviction history when making a hiring decision."
4. Subsections (1) and (2) do not apply where federal, state or local law, including rules and regulations, requires consideration of criminal history; to law enforcement agencies; to employers in the criminal justice system; or to an employer seeking a nonemployee volunteer.

ORS 659A.362 adds that the section is enforced by the Commissioner of the Bureau of Labor and Industries "as provided in ORS 659A.820 to 659A.865." The Legislature's note says 659A.360 and 659A.362 were enacted but not formally added to chapter 659A by legislative action.

Who is covered

ORS 659A.001(4) defines an employer as "any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed." Section 659A.360 adds no size threshold. The words "through an agent" are the ones that matter for recruiters: an agency running the early stage of a client's process is how the client "requires" disclosure, if the agency asks. ORS 659A.001(5) separately defines an employment agency as "any person undertaking to procure employees or opportunities to work"; 659A.360 itself speaks only of employers.

What is allowed at each stage

Two features of the wording are worth noticing. First, the section speaks of "requiring" disclosure and of convictions; it does not mention arrests or say anything about background checks or online searches. Second, it is silent on what counts as the "initial interview." Whether a recruiter's phone screen is the initial interview is a question we did not find answered in the statute, so the safer practice is to treat the recruiter screen as the pre-interview stage and keep conviction questions out of it.

What Oregon does not require

ORS 659A.360 does not require an individualized assessment, a preliminary notice or a response period before a conviction-based rejection. The decision is still subject to federal Title VII and the EEOC's guidance on arrest and conviction records, and, where a screening company is involved, the FCRA. Cities may add their own rules; we did not check Oregon local ordinances for this page.

Staffing agencies and recruiters

Because the definition of employer covers acting "directly or through an agent," a staffing firm screening for a client sits inside the client's obligation, and as an employer of its own temporary workers it is covered directly. The cleanest arrangement is to agree at intake that the agency will not ask about convictions at all and that any conviction inquiry happens in the client's process after its initial interview, or after a conditional offer where there is no interview.

Penalties and enforcement

Enforcement runs through the Bureau of Labor and Industries' complaint process in ORS 659A.820 to 659A.865, under ORS 659A.362. The section itself does not set a fixed fine, and we have not listed remedy amounts because we did not verify how those provisions apply to this section. An applicant who believes they were excluded from an interview because of a conviction can file a complaint with BOLI.

How it fits with FCRA adverse action

When the employer reaches the point where it may consider conviction history and uses a screening company, the federal FCRA applies: a stand-alone disclosure and written authorization before the check, a pre-adverse action notice with a copy of the report and the summary of rights before rejecting, a reasonable wait, and a final adverse action notice. Oregon adds no separate state notice in 659A.360, so these steps, plus the employer's own individualized review, are the process. See the FCRA background check process and background check notification emails.

How Oregon compares with its neighbors

Recruiters covering the West Coast often handle Oregon, Washington and California roles on the same desk. The three laws put the line in different places:

A single process that waits for a conditional offer and gives at least five business days to respond satisfies the timing and response periods of all three, which is usually simpler than tracking which state each candidate's job is in.

Questions to settle with an Oregon client at intake

• Does any federal, state or local law require considering criminal history for this role? If so, which one?
• Is the client a law enforcement agency or an employer in the criminal justice system?
• What is the client's initial interview, and who conducts it?
• Who orders the background check, when, and who sends the FCRA notices?

A script for Oregon screens

Candidate volunteers a conviction: "Thanks for telling me. That's not part of my screening, and it doesn't affect whether you move forward to an interview. I won't note it."

Candidate asks if a record will keep them from an interview: "No. In Oregon a past conviction can't be the reason someone is kept from an initial interview. If the employer looks at background later, that's a separate step."

Client asks you to collect conviction information on the screen: "Oregon doesn't allow requiring that before the initial interview, and we act as your agent on the screen. Unless a law requires checking for this role, it belongs in your process after the interview."

An Oregon checklist for recruiting desks

1. Remove conviction questions from applications, online forms and pre-interview questionnaires for Oregon roles.
2. Do not require disclosure on recruiter screens; treat the screen as the pre-interview stage.
3. Document any exemption with the law that requires considering criminal history for the role.
4. Keep anything volunteered out of submittals and notes. See what not to write in interview notes.
5. Route background checks through the FCRA disclosure, authorization and adverse action steps.
6. For federal guidance and the stricter rules in other states, see ban-the-box laws and interview questions.