The City of Austin, Texas has joined the long list of municipalities nationally that have adopted ordinances restricting employers ability to make inquiries into an applicant’s criminal background and to act on that information. Under Austin’s new Fair Chance Hiring Ordinance, an employer with fifteen or more employees in the City of Austin may not:
- publish or cause to be published information about a job that states or implies that an individual’s criminal history automatically disqualifies the individual from consideration for the job;
- solicit or otherwise inquire about the criminal history of an individual in an application for a job;
- 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 who submits an application for a job because the individual did not provide criminal history information before the individual received a conditional employment offer.
- take refuse to hire, promote or revoke an offer of employment or promotion because of 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 of the individual’s criminal history.
An employer who does uses an individual’s criminal history to deny employment or a promotion must inform the individual in writing that the adverse action was based on the individual’s criminal history. The ordinance also includes an anti-retaliation provision and administrative enforcement provisions. Importantly, the ordinance creates no criminal penalty but does impose a modest civil penalty of $500 per job that violated the ordinance. However, no civil penalty will be issued for an offense occurring prior to the first anniversary of the ordinance. Furthermore, the ordinance does not create a private right of action.
One consequence of this ordinance is that Austin employers will likely have to revise their initial employment applications to remove questions about an applicant’s criminal history. Questions about an applicant’s criminal history will now have to wait until after the employer extends a conditional job offer.
You can review the draft ordinance here.