The city of Austin in Texas is the latest major city to pass a Ban the Box ordinance which affects private employers.  Ordinance No. 20160324-019 was approved on March 24, 2016 by a vote of 8 – 2.

What this means for private employers in Austin:

  • An employer may not solicit or consider criminal history information about a job applicant until after a conditional offer of employment.
  • An employer may not take adverse action against an applicant unless an individualized assessment has been conducted and a determination made that the individual is unsuitable for the job based on that individualized assessment.
    • An individualized assessment must include, at a minimum, consideration of the following factors (a) the nature and gravity of any offenses in the applicant’s criminal history; (b) the length of time since the offense and completion of the sentence; and (c) the nature and duties of the job for which the applicant applied.  Note that these are the Green factors described in the EEOC’s 2012 enforcement guidance on the use of criminal history records.
  • The employer must advise the applicant of the adverse action based on criminal history information in writing.
  • The ordinance does not apply to a job for which a federal, state or local law, or compliance with legally mandated insurance or bond requirements, disqualifies the applicant based on their criminal history.
  • Violations of the ordinance will be enforced by the Austin Equal Employment/Fair Housing Office.  Employers may be issued a warning for a first violation, followed by a civil penalty of up to $500.
  • The effective date of the ordinance was April 4, 2016.