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Oregon Pre-Employment Law

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Does Oregon pre-employment law take precedence over federal law in asking for social security number and birthdate on the electronic application for employment? Does Oregon Employment Law prohibit an employer to ask for SS# and DOB before the offer is made?

Asking applicants for a social security number and/or date of birth is a grey area in Human Resources practices. There is no state law in Oregon that specifically prohibits such questions, as long as they are not used to discriminate against applicants in a protected class.

The Oregon anti-discrimination law prohibits discrimination in employment based on:

• Race or color
• National origin
• Sex (includes gender, pregnancy and sexual harassment)
• Religion
• Retaliation for opposing an unlawful employment practice
• Association with a member of a protected class
• Age (18 or older)
• Marital status
• Physical/Mental disability (6 or more employees)
• Injured workers (6 or more employees)
• Family relationship

Tips on pre-employment screening from the Oregon Bureau of Labor and Industry are here.

 

There is the potential for illegal discrimination based on age when an employer asks applicants for the date of birth. And, an employer who asks for a social security number may be illegally discriminating based on citizenship status, which is a violation of federal law. In the 1980s and early 90s, it was very common for employers to avoid asking for a social security number or date of birth, for exactly these reasons.

However, in the post-9/11 era, security often trumps these concerns. The Department of Homeland Security routinely asks all applicants for social security number and date of birth, in order to check criminal background and security clearances.

The courts have upheld the employer’s right to ask for this information, if there is a valid business need – for example, to check the worker’s background or verify a professional license. Employers hiring child care providers, school teachers, security guards, and law enforcement personnel – among others – have a valid need to check the worker’s background, including any criminal convictions. When hiring doctors and nurses, the employee’s credentials must be checked. Before hiring a professional driver, the employer needs to see the applicant’s previous driving history. An employer hiring a manager or a worker who handles cash has a legitimate interest in the applicant’s credit history.

All of this information is difficult or impossible to access without the worker’s date of birth or social security number. Many online application systems require social security numbers, although usually there is – or should be – an alternative. For electronic application services, the alternative is often mailing an application or resume.

This is partly a result of advances in technology. In the past, background information was often secured via a phone call to a credit bureau, college or former employer. Today, such information is almost always obtained through a computerized background check that requires a social security number and date of birth.

If the information was specifically used in a discriminatory manner, it would be illegal under both Title VII of the Civil Rights Act and Oregon law. For example, an employer who used the date of birth to exclude any applicants who were over 40, would be violating the law. However, an employer who requested this information of every applicant, and did not discriminate based on age, would not be breaking the law.

 Some employers still wait to request this information until a job offer has been made. The offer is almost always contingent on references and the results of the background check.  Other employers have determined that their liability in hiring, say, a convicted sex offender to work at a daycare center, outweighs the potential risks. They are confident that a review of their applications and hiring process will show that they are not using the information to discriminate against workers in a protected group.