On March 24, 2016, the City of Austin, Texas passed a Fair Chance Hiring ordinance that requires an employer to delay both asking the applicant about criminal history and conducting a background check until the employer has first made a conditional employment offer to the applicant. Under the ordinance, “conditional employment offer” means an oral or written offer by an employer to employ an individual in a job, or placement in a staffing agency’s staffing pool, that is conditioned on the employer’s evaluation of the individual’s criminal history, and may be conditioned on any pre-employment medical examinations authorized under the Americans with Disabilities Act (ADA).
The ordinance applies to any “person, company, corporation, firm, labor organization, or association that employs at least 15 individuals whose primary work location is in the city for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” The ordinance excludes any “job for which a federal, state, or local law disqualifies an individual based on criminal history.” The ordinance also applies to staffing pools - defined as a list of individuals retained by a staffing agency before the assignment of a specific job to perform for another employer.
The new Austin ordinance makes it unlawful for employers to:
- Publish information about a job that implies that an applicant’s criminal history automatically disqualifies the individual from consideration for the job;
- Inquire about the criminal history of a potential employee in a job application;
- 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;
- Refuse to consider employing an individual for job because the individual did not provide criminal history information before the individual received a conditional employment offer, or
- Take adverse action against the individual’s criminal history unless the employer has a good faith belief that the individual is unsuitable for the job based on an individualized assessment conducted by the employer.
In a last-minute change not reflected in many circulated drafts, the ordinance allows a staffing agency to solicit criminal history information about an individual and make an individualized assessment of an individual’s criminal history when the staffing agency identifies a job for the individual or places the individual in a staffing pool.
In the individualized assessment, the employer must consider the following factors to determine whether an applicant’s criminal history is job related:
- The nature and gravity of any offense in the individual’s criminal history;
- The length and time since the offense and completion of the sentence, and
- The nature and duties of the job for which the individual has applied.
The employer may rescind a conditional offer of employment for any lawful reason including if, after it conducts an individual assessment, it determines that the individual’s criminal history makes him or her unsuited for the job. After that decision, the employer must inform the individual in writing that the adverse action was based on the individual’s criminal history.
The Equal Employment/Fair Housing Office is charged with enforcing the ordinance. Employers violating the ordinance during the first year will receive a written notice from the Equal Employment/Fair Housing Office that informs the employer that a civil penalty may be assessed. After the first year, the employer must cure the violation of the ordinance by the tenth business day after receiving the notice of the violation, or the employer is liable for a civil penalty of $500.
The ordinance became effective on April 4, 2016 and is accessible here for review:
Employers who violate the ordinance within the first year will receive a warning and will be liable for a civil penalty of $500 if they do not cure the violation after the first year by the 10th business day of receiving the notice of violation.
- This applies to private employers in the City of Austin who employ more than 15 people.
- Austin employers may not request criminal background information on a job application or before making a conditional offer of employment.
- Austin employers must consider the relationship between the offense, the time since the offense, and the job duties when considering criminal history. Austin employers must provide a written notice to an applicant if they rescind the job offer on the basis of the applicant’s criminal history.
- A staffing agency can inquire for criminal history information about an individual and make an individualized assessment on them when the staffing agency has identified a job for the individual or placed the individual in staffing pool.