routinely get asked questions around Austin’s Fair Chance Hiring Ordinance and Ban the Box Guidelines.  Simply stated, this Austin Ordinance, enacted in March of 2016, prevents private employers who have 15+ employees from asking questions of an applicant about their prior criminal history during the application process.  This means asking these types of questions on an employment application or during an interview.  This Ordinance extends to considerations for promotions as well so employers are advised to know the requirements before denying a promotion or a job opportunity based on a criminal conviction.Austin’s Ordinance was enacted to give applicants with a criminal background a fair chance at job opportunities if they are qualified for a position they are applying for, and this Ordinance allows them the chance to be considered.  Employers still have the option of running a criminal background check on a qualified candidate but should do so after a contingent offer has been made and not in the application stage of the process.  Employers should be consistent in their screening practice and not single out a particular individual to screen; however, employers can limit screens to a particular job class or position within the company.  Once a contingent offer has been made, the employer can conduct a criminal background check and should have a background authorization completed by the applicant before doing so.  If results are unfavorable, employers can withdraw a contingent job offer for any lawful reason, including determination that an individual is unsuitable for the job based on an individual assessment of the candidate’s criminal history.  Be careful, unsuitable takes into consideration whether the considered offense is job relevant or not.Best Practice:

  • Revise job applications, interview questions and policies to avoid questions about prior criminal convictions.
  • Revise the sequence and timing of conducting background checks to be after a contingent offer has been made.
  • Job Postings can say the company does conduct a criminal background screen on all new hires and findings are considered based on job relevancy.
The ordinance does not apply to:• Private employers with less than 15 employees or private employers with 15+ employees for no more than 20 calendar weeks in the current or preceding year.• Employers headquartered outside of Austin that have more than 15 employees, but less than 15 primarily working from an Austin location.• Government employers on the federal, state, county and municipal levels.• Public school districts.• Private membership clubs exempt under Section 501 (c) of the Internal Revenue Code.

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