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Austin Joins Ban-the-Box Movement

Austin’s Fair Chance Hiring Ordinance went into effect on April 4, 2016.  This “Ban-the-Box” law prohibits private employers from inquiring about an applicant’s criminal history until after making a conditional offer of employment. This law affects employers with at least 15 employees who work primarily within the City for each working day in 20 or more calendar weeks in the current or preceding calendar year.

Agencies working on behalf of employers must also abide by the requirements and restrictions, and the law applies to all types of employment, including, but not limited to, temporary, seasonal, contract, and apprenticeship work.

After a conditional offer of employment is made, an employer may proceed with a background check, but may not take adverse action based on the applicant’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”.  This individualized assessment must consider:

  • The nature of the criminal history;
  • The length of time that has passed since the offense or release;
  • The relationship of the crimes(s) to the position.

If after proper assessment an employer decides to rescind the offer, they must inform the applicant in writing that the decision was based on the individual’s criminal history.

There is no private right of action against an employer provided for in the law.  Instead, the Equal Employment/Fair Housing Office will field complaints and investigate violation claims. Employers will be given 10 business days to correct a violation after receiving notice of infraction otherwise they may face up to a $500 civil penalty. First-time violations may result in just a warning if the employer agrees to attend appropriate training.

Full text of the Austin law can be found here

A complete list of all private employer ban-the-box laws can be found here

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