Austin, Texas Passes Ban the Box Ordinance

Posted: April 13, 2016

On March 24, the Austin City Council passed Ordinance No. 20160324-019 establishing fair chance hiring standards within the city. Commonly known as a “ban the box” law, the Ordinance represents the first of its kind in the state of Texas that applies to private employers. The Ordinance is effective as of April 4, 2016. Applicability The Ordinance applies to private employers that have at least 15 individuals whose primary work location is within the city of Austin for each working day in 20 or more calendar weeks in the current or preceding calendar year. The concepts of “primary work location” and “working day” are not defined under the Ordinance. There are several exemptions under the Ordinance including where a federal, state or local law, or compliance with legally mandated insurance or bond requirements, mandates disqualification based on criminal history. Criminal History Inquiry & Adverse Action Covered employers are prohibited from inquiring into an individual’s criminal history until after a conditional offer of employment has been extended. Further, employers may not refuse to hire an individual based on criminal history information until after conducting an individualized assessment to determine whether or not the individual is suitable for the position. An individualized assessment is defined under the Ordinance as an evaluation of the criminal history taking into account factors such as: (1) the nature and gravity of any offenses, (2) the length of time since the offense and completion of sentence and (3) the nature and duties of the position. Prior to a conditional offer, employers may explain to applicants in writing the particular “individualized assessment system” used to consider criminal history. If the employer chooses to take adverse action after conducting the individualized assessment, the employer must inform the individual in writing that the action is based on the individual’s criminal history. Employers are not prohibited from withdrawing a conditional offer for any lawful reason, including if the individualized assessment results in a finding that the individual is unsuitable for the position. The Ordinance also specifically addresses staffing agencies, allowing them to solicit the criminal history of an individual (and make an individualized assessment) once the agency has identified a job for the individual or is ready to place the individual in a staffing pool. Enforcement & Penalties The Equal Employment/Fair Housing Office is responsible for educating and enforcing this Ordinance. For any violation of the Ordinance, an employer will receive written notice and 10 business days to correct the issue. If the employer fails to correct the issue within this time period, a civil penalty up to $500 will be assessed. If this violation is a first-time offense, the employer may instead receive a warning provided the employer attends compliance training. No penalties will be assessed until after the first anniversary of the Ordinance’s effective date.