Austin has become the first city in the South to ban private employers from using The Box. For those of you who have come late to this game, “The Box” refers to the checkmark box on an application for employment which asks an applicant to disclose whether she has ever been convicted of a crime. On March 24, 2016, Austin’s City Council adopted an ordinance restricting Austin hiring practices. Private employers are prohibited from asking applicants to disclose those arrests, dismissed cases, or criminal convictions on an employment application. However, the ordinance is more extensive than this.
To whom does the law apply? It applies to all employers that employ at least 15 individuals whose primary work location is in the city of Austin and who work for at least 20 calendar weeks of the year. The term “employer” includes staffing agencies that assign individuals to perform work for another employer as long as the staffing agency retains the obligation to pay the individuals for the work performed.
What does the law require? First, an employer cannot state – or imply – in a publication that an applicant’s criminal history will automatically disqualify him from consideration for a job.
Second, as we already noted, an employer cannot ask an applicant about her criminal history in a job application.
Third, an employer may not refuse to consider employing an individual simply because he refused to provide criminal history information before receiving a conditional offer of employment.
Fourth, an employer cannot ask an applicant about her criminal history information, nor can it run a background check on that applicant, until after it has made a conditional offer of employment. In this context, the term “conditional employment offer” refers to a very specific type of offer; it is one that must be one conditioned solely on the employer’s evaluation of the applicant’s criminal history as well as the results of any pre-employment medical examinations authorized under the Americans With Disabilities Act. The implication is that, in the absence of any criminal history, the applicant will be hired and he can, therefore, rely on that offer in good faith and turn down other job offers and quit his existing job.
Fifth, it is illegal to take adverse action against an applicant because of her criminal history unless the employer has determined that the individual is unsuitable for the job based upon an individualized assessment conducted by the employer. In conducting an individualized assessment, the employer must consider (a) the nature and gravity of the criminal offenses, (b) the age of the offense and the completion of any sentence, and (c) the nature and duties of the job at issue.
Sixth, it is illegal to retaliate against an applicant if he reports to the city’s Equal Employment/Fair Housing Office (“EEFHO”) that an employer violated the city’s Fair Chance Hiring ordinance.
What are the affirmative obligations imposed on an employer? When an employer takes adverse action against an applicant based upon his criminal history, it must provide the applicant with a written statement explaining that the adverse action was based upon the individual’s criminal history. The law does not elaborate on what exactly must be contained in the statement; unlike New York City’s Fair Chance Act, which requires NYC employers to provide a detailed written analysis disclosing all the evidence considered by the employer and how it came to its decision not to hire the applicant, Austin presently appears to permit employers merely to notify the applicant that her criminal history was the basis for taking adverse action. That being said, the ordinance grants to the EEFHO the power to adopt rules implementing the municipal law. It may be the case that rules detailing the content of the adverse action notice will be issued by the city agency.
Are there any exceptions? Yes, there are three exceptions.
First, if federal, state, or local law prohibits an employer from employing certain convicts, then this law does not apply.
Second, this law also recognizes an employer’s authority to withdraw a conditional offer of employment for “any lawful reason.” Oddly enough, the very definition of “conditional employment offer” would seem to preclude the presence of “any other lawful reason” other than the presence of criminal history information that renders the applicant unsuitable for the job. It is likely that this recognizes the at-will nature of employment, wherein an employer can terminate an individual’s employment for any reason or no reason at all, so long as it is not for an illegal reason. It might also be recognition of the fact that disqualifying information about an applicant not having to do with her criminal history may come to the employer’s attention after making the conditional offer of employment.
The third exception to this statute grants permission to a staffing agency to obtain a background check on an applicant and to make an individualized assessment of that person’s criminal history information once it has “identified” a job to which he may be dispatched. Put differently, the staffing agency’s customer does not have to offer employment to the applicant before the staffing agency can run a background check.
What are the penalties for violating this new law? For the first year of its existence, employers will benefit from a grace period where they will not be fined a civil penalty but will instead receive a written warning. After the first year, the city may permit first time violators to avoid the penalty by attending a training session about compliance with the law. Thereafter, a $500.00 penalty can be imposed for each job which violates this ordinance.
When does this law take effect? Good question. Presumably, this law must be signed by the mayor, and we do not yet know the day upon which it will take effect. We will update this blog once this information has been released.
This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2016 ©Employment Screening Services, Inc.
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