City of Austin Bans the Box and More

By Michael Klazema on 4/13/2016

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:

What This Means to You

  • 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.
  • 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.
Industry News

Tag Cloud
Recent Posts

Latest News

  • December 11 The Department of Health and Human Services Office of the Inspector General criticized a migrant youth detention center on the border for not running the proper background checks. Federal law requires the facility to screen all employees with FBI fingerprint checks.
  • December 06 In a bid to combat money laundering and illicit funding sources for terrorists flowing through the country's real estate sector, Singapore's government now mandates background checks for buyers purchasing properties prior to development.
  • December 04 What is a reference check? How does it vary from a work history check? We explore these questions and others.
  • December 04 Chicago Public Schools has dismissed hundreds of employees, coaches, vendors, and volunteers based on background check findings. The district recently vowed to re-check the majority of its 68,000 employees after a Chicago Tribune investigation revealed holes in its background check policies.
  • November 29 Striving to create a safer environment more conducive to productive training and leadership development, the Army has recently moved to adopt a uniform policy of background checks for certain roles. 
  • November 27 For hiring managers to verify the information provided on a resume, verification is essential.  Such is the purpose of employment history background checks.
  • November 27 California’s biggest public school district is waiving the cost of volunteer background checks. The move is meant to encourage more family - and community members to get involved with the school district.
  • November 22 Contractors play an important role in the workforce, delivering services to both individuals and organizations. Vetting contractors for suitability continues to be a challenge, as two recent articles prove.
  • November 21 When it comes to background and pre-employment checks, it can be instructive to look at the characteristics of the ten most massive U.S. employers.
  • November 21

    Verification checks are a powerful way to assess how truthful a job candidate has been on his or her application or resume. These checks can verify work history, education verification, professional licenses, and favorable personal qualities.