For any Texas companies that have not been paying close attention to the nation-wide trend of “ban-the box” laws, this is your wake up call. On March 24, 2016, 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. With this Ordinance, Austin has joined numerous other cities and states (Chicago, New York City, New Jersey, and Massachusetts, to name a few) in restricting private employers’ ability to ask about criminal history.
Although Austin passed a similar ordinance in 2008, the ordinance prevented only public employers from asking about criminal history during the initial application process. The new 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.
Similar to other “ban-the-box” laws, the Austin Ordinance is not a wholesale prohibition on inquiries into an applicant’s criminal history. An employer may ask about criminal history, but only after a conditional offer of employment has been made. Nevertheless, this new restriction could drastically change employers’ preferred hiring practices, especially for those employers that automatically reject any applicant with a criminal background.
Employers with at least 15 employees in Austin should promptly review their employment applications (including any online applications) distributed in Austin, and remove any questions regarding an applicant’s criminal history. Likewise, companies should alter their hiring practices to comply with the Ordinance. By failing to do so, an employer will risk civil penalties, and, perhaps more notably, an investigation from the City of Austin Equal Employment & Fair Housing Office, which enforces Title VII and other similar federal statutes and local ordinances in Austin. Fortunately, employers have a bit of time to adjust to the 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 are compliant with the new Austin Ordinance.