“Ban-the-Box” Laws Come to Austin – What Employers Need to Know

© 2016 The Texas Lawbook.

By Shaun Cassin of Baker & McKenzie

(June 22) – Earlier this year, the Austin City Council, by an 8-2 vote, approved the Fair Chance Hiring Ordinance, which prevents employers from inquiring about applicants’ criminal backgrounds until after a conditional offer of employment has been made.

These laws, commonly referred to as “ban-the-box” laws, have seen a rapid increase in support across the United States over the last few years. Texas companies that have not been paying close attention to this nationwide trend may need to adjust their hiring practices to comply with the new Austin ordinance. Likewise, Texas companies with a national presence should be aware of ban-the-box laws that have passed in states or cities in which they operate.

Employers who do not comply with these laws risk exposure to fines and penalties, and to being targets for individual and class-action lawsuits.

What Are Ban-the-Box Laws?

Generally, “ban-the-box” refers to legislation that prevents employers from asking about criminal history on employment applications. The purpose of these laws is to provide ex-offenders a greater chance of obtaining employment and receiving individualized assessment. The growing interest in these laws is largely attributable to the grassroots efforts of numerous organizations that aim to remove hiring barriers for individuals with criminal records.

Currently, there is no ban-the-box law that entirely prohibits inquiry into criminal history. Various laws do, however, dictate when an employer is permitted to ask about criminal history. Some laws permit inquiry into criminal history any time after the initial application, while others prevent inquiry until after the applicant has been selected for an interview, or after a conditional offer of employment has been made.

Ban-the-box laws also impose restrictions regarding what criminal-related information employers can ask applicants about. Some allow inquiry only into certain convictions and explicitly prevent employers from asking about non-conviction arrests or expunged records. It is important to note that ban-the-box laws do not apply to every industry or position. For example, depending on the jurisdiction, positions in child care, health care and financial institutions are often exempt from these restrictions.

Which Jurisdictions Have Ban-the-Box Laws?

Twenty-three states and over one hundred cities have adopted a ban-the-box law. The majority of ban-the-box laws only apply to public employers. However, a growing number of state and local governments have passed ban-the-box laws that apply to private employers. At this time, the following seven states have enacted private employer ban-the-box laws:

• Hawaii
• Illinois
• Massachusetts
• Minnesota
• New Jersey
• Oregon
• Rhode Island

Additionally, a number of cities and counties have passed ban-the-box laws that apply to private employers, including Baltimore, Chicago, New York City, Philadelphia, San Francisco, Seattle and Washington D.C.

Now, Austin has joined the list. Although Austin passed a ban-the-box ordinance in 2008, the ordinance prevented only public employers from asking about criminal history during the initial application process. The new Fair Chance Hiring Ordinance, however, applies to private employers with 15 or more employees in Austin, making Austin the first Texas city to “ban-the-box” for private employers.

Specifically, the Austin ordinance prevents employers from asking about criminal history until after a conditional offer of employment has been made. This new restriction could drastically change Texas employers’ preferred hiring practices, especially for those employers that automatically reject any applicant with a criminal background.

Fortunately, employers have a bit of time to adjust to the Austin ordinance, as any violations that occur within the first year in which the ordinance is in effect (April 4, 2016 to April 4, 2017) will only result in a written warning. However, it is never too soon for employers to start ensuring their applications and hiring processes comply with the new Austin ordinance.

What Should Companies Do?

Employers should determine if they operate in a jurisdiction with a ban-the-box law, such as Austin. If they do, they should determine what they are prevented from asking about entirely, review their applications and remove or limit questions about criminal history, and ensure their hiring policies appropriately delay inquiry into criminal history according to the applicable laws.

One of the biggest challenges for multi-state employers is the lack of uniformity in the various laws. National employers will have to choose between individually tailoring their hiring practices to jurisdictions with ban-the-box laws or adopting a uniform policy that is compliant with all applicable ban-the-box laws.

Shaun Cassin is an associate in the Houston office of Baker & McKenzie and member of the Firm’s Labor & Employment Practice Group. He is a regular contributor to Baker & McKenzie’s labor blog, The Lone Star Employer Report.

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