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Austin ‘bans the box,’ limiting criminal history inquiries

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in Employment Background Check,Human Resources

On March 24, the Austin City Council passed the Fair Chance Hiring Ordinance, commonly known as a “ban the box” resolution. The law, which took effect April 3, prohibits covered employers from asking about a potential employee’s criminal background before making an employment offer. It also makes it unlawful to state in a job posting that a criminal history automatically disqualifies an applicant from being hired.

The ordinance also prohibits an employer from refusing to hire, refusing to promote or revoking a job offer because of an applicant’s criminal record unless the individual’s criminal history provides the employer “a good faith belief that the individual is unsuitable for the job based on an individualized assessment conducted by the employer.”

The individualized assessment must include an evaluation of the:

  • Nature and gravity of any offenses in the individual’s criminal history
  • Length of time since the offense and completion of the sentence
  • Nature and duties of the job for which the individual has applied.

If an employer takes adverse action based on an individual’s criminal history, it must inform the individual in writing that the adverse action was based on his or her criminal history.

The ordinance covers employers that have at least 15 employees working in Austin for each working day in 20 or more calendar weeks in the current or preceding calendar year.

Federal, state, and local governments and agencies are exempt from the ordinance.

The ordinance does not give individuals a civil right of action, but violations subject employers to administrative penalties of up to $500 per violation. Violations in the first year in which the ordinance is in effect will only result in written warnings.

Advice: If you are a covered employer, remove any inquiries about applicants’ criminal histories from job applications. Train hiring personnel to only perform criminal background checks after the a conditional job offer has been made.

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