On March 24, 2016, the Austin City Council approved Texas’ first “ban-the-box” ordinance covering private employers.
Such ordinances, which are also called “fair chance hiring” laws, are intended to improve the employment opportunities of individuals with criminal histories.
Proponents claim that by removing the criminal history question (the “box”) from the employment application and delaying it until later in the process – often until after a conditional offer of employment has been made – former offenders will have an better chance of impressing employers with their qualifications for the position sought.
I’ve previously written about my concerns with these sorts of ordinances, so I will only address the Austin ordinance in this article.
Beyond banning the box, Austin’s ordinance has a number of additional requirements for employers. Each is listed in italics below, followed by my commentary.
An employer may not publish or cause to be published information about a job covered by this chapter that states or implies that an individual’s criminal history automatically disqualifies the individual from consideration for the job.
In other words, phrases like “clean background check required” or “no felonies allowed” should be removed from all job postings and other communications about job opportunities. As I discuss in my upcoming free webinar, Background Screening Policy Considerations to Avoid Discrimination Claims, removing such language (and the related policies) have long been recognized as a best practice to avoid disparate impact claims under Title VII of the Civil Rights Act of 1964.
Employers in Austin can include language such as “background check required” in job postings, however, I advise that such language be paired with language indicating that “the existence of a criminal record is not an automatic bar to employment.”
An employer may not solicit or otherwise inquire about the criminal history of an individual in an application for a job covered by this chapter.
This is the classic ban-the-box requirement – remove the criminal history question from the employment application and related paperwork presented to applicants.
Austin’s ordinance does not prohibit the employer from making the disclosures or obtaining the authorizations required prior to procuring a background check under the federal Fair Credit Reporting Act along with the employment application. I recommend that employers highlight, however, that the existence of a criminal history is not an automatic bar to employment.
An employer may not solicit criminal history information about an individual or consider an individual’s criminal history unless the employer has first made a conditional employment offer to the individual.
In other words, employers can’t ask applicants about their criminal history until after a conditional offer has been made. Also, employers cannot conduct formal or informal criminal history background checks on applicants until after an offer has been made.
The trap for employers may be the employment applicant who volunteers their criminal history during an interview.
If a candidate mentions that they have a parole officer, can the employer ask a follow up question to clarify that?
Probably not. The follow up question would likely be considered a solicitation of criminal history information.
If a candidate spills the beans and tells the employer that they were convicted last year of sexual assault, can the employer eliminate them from consideration for a position as an in-home service provider?
Not under this ordinance, which states that employers may not “consider an individual’s criminal history unless the employer has first made a conditional employment offer.” Apparently, the employer would be required to carry on a charade of considering the applicant as a viable candidate and, in the absence of an obviously more qualified candidate, make an offer so that they could legally consider the information volunteered by the applicant.
An employer may not refuse to consider employing an individual who submits an application for a job because the individual did not provide criminal history information before the individual received a conditional employment offer.
This one is easy. An employer can’t illegally ask an applicant about their criminal history and then refuse to hire them because they refused to answer until after an offer has been extended.
An employer may not take adverse action against an individual because of the individual’s criminal history unless the employer has determined that the individual’s criminal history bears a direct relation to the duties and responsibilities of the job and makes the individual unsuitable for the job.
Here’s where the Austin ordinance is sure to make employers nervous.
The ordinance doesn’t define “direct relationship to the duties and responsibilities of the job” or what makes an applicant “unsuitable for the job,” leaving the issue of fairness to city government employees.
For instance, does a three-year-old DWI conviction meet these two standards when considering an individual who drives in course of their work?
Probably.
But how about a seven-year-old DWI? Different employers may have different risk tolerances. Who decides if an employer who didn’t hire someone based on such a history made the right decision?
Under the ordinance, if the applicant believes that the employer’s decision doesn’t meet the ordinances standard, they can file a complaint with the Austin Equal Employment/Fair Housing Office.
Or even more abstractly but definitely something our clients deal with regularly, what about the applicant for an office admin/clerical position and doesn’t have to drive in the course of their work who has convictions in the last five years for DWI, disturbing the peace, and theft by check? None of these offenses, in and of themselves would seem to bear a direct relationship to the job responsibilities. However, taken as a whole, smart employers are going to recognize that such an applicant has problems conforming to expected behavior norms and generally taking care of business.
If an applicant who was disqualified because of such a history files a complaint, how will the Austin Equal Employment/Fair Housing Office decide such an issue?
An employer who takes adverse action against an individual based on the individual’s criminal history must inform the individual in writing that the adverse action was based on the individual’s criminal history.
Under the ordinance, “adverse action means a refusal to hire, a refusal to promote, or the revocation of an offer of employment or promotion.”
Employers will want to ensure that they work with their legal counsel to craft a standard communication to applicants whose criminal history negatively impacts the employment decision. This is necessary whether the information was provided by the applicant or revealed in a background check. Unlike New York City, the Austin ordinance does not require the employer to detail their reasoning – only that the criminal history factored into the decision.
The Austin Equal Employment/Fair Housing Office will be in charge of investigating complaints made against employers. Such complaints must be made within 90 days of the alleged violation.
The Office will have the power to issue subpoenas for documents or testimony during their investigation.
On determining that a violation has occurred, Equal Employment/Fair Housing Office will give the employer an opportunity to voluntarily comply with their decision. If the employer refuses to take the action mandated by the Office, a $100 civil penalty can be assessed.
However, the ordinance provides that no civil penalties will be assessed until the ordinance has been in effect for two years – March 2018.
As outlined in Seven Steps to Confident Hiring Decisions, I recommend that employers evaluate the risk levels suggested by different kinds of offense for different jobs. Our upcoming free webinar, Background Screening Policy Considerations to Avoid Discrimination Claims, also covers this evaluation process. (Also, see our July webinar, Developing a Criminal History Evaluation Tool.)
By documenting these considerations in advance, employers will be able to demonstrate that they have evaluated the business justifications for their policies.
Additionally, I recommend that employers present a thorough criminal history question to candidates along with the conditional offer of employment, explaining that the offer cannot be accepted without an appropriate response and that the offer will not be final until a background check has been completed and reviewed. I also recommend that the offer include a warning that failure to accurately respond to the criminal history inquiry will result in revocation of the offer or termination from employment.
Imperative offers a sample criminal history inquiry that may be helpful.
Finally, after the conditional offer has been accepted and the response to the criminal history inquiry received, a thorough criminal background check should be conducted.
Once the background check has been completed, the applicant’s response to the criminal history inquiry should be reviewed to ensure that the applicant’s response was accurate. There should be no surprises on the background check. If there are, the employer should follow the process required by the federal Fair Credit Reporting Act before taking any adverse action.
Austin employers should review their current processes to ensure compliance with the new ordinance. It is likely that complaints will start rolling into the Equal Employment/Fair Housing Office very soon. While the civil penalties have been delayed two years, the administrative burden of replying to subpoenas for documents or testimony before city employees will be a hassle that employers will want to avoid.
Austin is the first Texas city to pass such an ordinance but it is likely not the last. Numerous states and cities around the country have adopted similar laws and the idea is being promoted by groups like the National Employment Law Project and the National League of Cities.
Employers around Texas should carefully watch Austin employers’ experiences in the coming months in preparation for similar proposals in their own cities.
