Austin Becomes First Texas City to Pass “Ban the Box” Law

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Austin, Texas recently joined ranks with other cities across the United States to “ban the box” for private employers. What this means is that under the new law, Austin employers with 15 or more employees may not require an applicant to disclose his or her criminal history prior to the employer extending a conditional offer of employment.

Further, the affected employer may not: publish information about a job that states or implies that applicants with criminal histories are automatically disqualified from consideration; ask about an applicant’s job history on a job application; ask for information about an applicant’s criminal history or consider an applicant’s criminal history before the employer makes a conditional offer of employment to the applicant; refuse to consider an applicant who does not provide criminal history information before receiving a conditional offer of employment; or take adverse action (refusing to hire, refusing to promote, or the revocation of an offer of employment or promotion) against an individual based on his or her criminal history unless the employer has a good faith belief, after making an individual assessment of the applicant, the criminal history and the job, that the criminal history bears a direct relation to the duties and responsibilities of the job, and makes the individual unsuitable for the job.

The law does not apply to a job for which a federal, state, or local law or compliance with a legally mandated insurance or bond requirement, disqualifies an individual based on criminal history. [See also, the guidelines issued by the Texas Department of Licensing and Regulation (TDLR) pursuant to the Texas Occupations Code, § 53.025(a) at https://www.tdlr.texas.gov/crimconvict.htm. These guidelines describe the process by which TDLR determines whether a criminal conviction renders an applicant an unsuitable candidate for the license, and also whether a conviction warrants revocation or suspension of a license previously granted.]

The statute also requires employers who take adverse action on the basis of criminal history to inform the applicant in writing of the fact.

Employers who fail to comply within 10 days of receiving a written notice of violation from the City and can be assessed a civil penalty of $500, although civil penalties will not be imposed for any violation that occurs prior to April 4, 2017. The new law imposes no criminal penalties nor private rights of action.

Austin employers should consider reviewing their job applications to remove questions about an applicant’s criminal history; establishing a protocol for obtaining and considering criminal history information, performing individualize assessments of each applicant’s information; and systematic notification in writing of any applicant disqualified because of criminal history. Finally, we encourage our members to train their employees in the hiring process so as to be in compliance with the new law.

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Posted In: Legal, Management