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This article is general information for CIS members. It is not legal advice, does not create an attorney-client relationship, and does not create, modify, or interpret CIS coverage. Consult your own city or county attorney about your charter, code, and specific circumstances.

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When Local Governments May Use Law Enforcement Agencies for Criminal Background Checks

Writer: Jeff Williams
Jeff Williams
3 days ago
3 min read

When filling certain positions, a criminal background check may be legally required or can help employers make informed risk-based hiring decisions. Before conducting a criminal background check, employers should be aware of Oregon's "ban the box" requirements under ORS 659A.360:


(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 the employer:

(a) Requires an applicant to disclose on an employment application a criminal conviction;

(b) Requires an applicant to disclose, prior to an initial interview, a criminal conviction; or

(c) If no interview is conducted, requires an applicant to disclose, prior to making a conditional offer of employment, a criminal conviction.

(3) Subject to subsections (1) and (2) of this section, nothing in this section prevents an employer from considering an applicant's conviction history when making a hiring decision.


(4) Subsections (1) and (2) of this section do not apply:

(a) If federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant's criminal history;

(b) To an employer that is a law enforcement agency;

(c) To an employer in the criminal justice system; or

(d) To an employer seeking a nonemployee volunteer. [2015 c.559§1]


As listed in Paragraph (4) above, you can see the law enforcement and criminal justice exceptions.


In addition, Oregon public safety certification requirements and LEDS/CJIS regulations restrict certification and system access for individuals with certain criminal histories. For further details, CIS recommends consulting with your LEDS Representative or contacting the LEDS helpdesk directly at:


Phone: (503) 378-5565

Fax: (503) 588-1378


A different question arises when a city or county asks its law enforcement agency to conduct a criminal background check for a position outside law enforcement or the criminal justice system. A law enforcement agency's ability to conduct criminal background checks through their LEDS/CJIS access is governed by Oregon Administrative Rule, the FBI Criminal Justice Information Services (CJIS) Security Policy, and federal law. Here are some helpful links regarding these references:



As part of Oregon Administrative Rule governing this (Oregon Secretary of State Administrative Rule 257-010-0025): "Access to OSP criminal offender information by any means shall be limited to: Criminal Justice Agencies, where the information is to be used for the administration of criminal justice, Criminal Justice Agency employment, or the information is required to implement a federal or state statute, local ordinance, Executive Order, or administrative rule that expressly refers to criminal conduct and contains requirements or exclusions expressly based on such conduct, or other demonstrated and legitimate needs."


For a law enforcement agency to properly conduct a criminal background check on an applicant for a non-Police Department or Sheriff's Office position, there must be a city or county (local) ordinance in place, which directs the law enforcement agency to conduct these criminal records checks. Employers should not automatically assume that the "other demonstrated and legitimate needs" apply to non-law enforcement positions (or that a cost-savings argument would apply). Even when a lawful process is in place, agencies should exercise caution in how criminal history information is disseminated. Personnel conducting the records check may be authorized only to determine whether an applicant meets established criminal history standards. They should not disclose underlying arrest or criminal history details.


As a best practice, organizations should identify in advance the types of criminal history that may disqualify an applicant from a particular position. Where no statute or regulation establishes disqualifying criteria, employers should ensure any criminal history standards are tied to the essential functions of the position and are job-related and consistent with business necessity. The consequences of not strictly adhering to these rules could be loss of LEDS/CJIS access, thereby making the administration of justice in your community extremely challenging.


If a CIS member is considering drafting an ordinance as described above, we recommend working closely with your city attorney or county counsel to create the ordinance and ensure its legal compliance as this is not a service of CIS. We additionally recommend you always check the most up-to-date versions of the above-mentioned statutes, rules, and policies as they may have changed since the publication of this document. Ensuring compliance with these ordinances, rules, and policies can similarly help mitigate employment-related claims when an applicant may allege disparate treatment or violation of Oregon's ban the box statute (ORS 659A.360) during the hiring process.

 
 
 

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