Austin Will Be First Texas City to 'Ban the Box' for Private Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
April 4, 2016
Austin will become the first Texas city to restrict the use of criminal history information by private employers in the hiring process. In late March, the Austin City Council passed the Fair Chance Hiring Ordinance, and Mayor Steve Adler is expected to sign it soon. The ordinance will prohibit both criminal history inquiries and criminal background checks until after an employer makes a conditional job offer. Those provisions will make the new law the broadest "ban the box" measure in the South.
"Ban the box" refers to eliminating the box on job applications that some employers use to ask prospective employees if they have ever been convicted of a crime. Austin already prohibited the use of criminal history questions on city employment applications. But this new ordinance goes much further.
The Austin ordinance will apply to all employers, labor organizations or associations with 15 or more employees whose primary work location is within the city for at least 20 weeks in the current or preceding calendar year. The law will also apply to any agency acting on an employer's behalf.
In addition, it precludes an employer that publishes information about a job from either stating or implying that a job applicant's criminal history automatically disqualifies the individual from the job.
While the ordinance does not ban a covered employer from withdrawing a job offer, it will prohibit an employer from denying employment or taking other adverse action because of an individual's criminal history, unless the employer determines there is a direct relation between the individual's criminal history and the responsibilities of the job.
The ordinance stops short of providing jilted applicants with a private right of action, however. It also excludes from coverage:
- Nonprofit organizations;
- State agencies; and
- Any job for which a federal, state or local law automatically disqualifies an individual based on his or her criminal history.
In all, 19 states have passed "ban the box" laws or adopted such policies to remove criminal history questions from initial job applications. Seven of these states restrict private employers from asking these questions at the job application stage, including:
The idea behind "ban the box" laws is to give qualified, rehabilitated candidates a legitimate chance to be considered for job openings. A number of large employers including Target, Home Depot and Koch Industries have eliminated criminal history questions from their job applications.