Austin, Texas recently became the latest city to “ban the box” for private employers. Under the new law, Austin employers with 15 or more employees may not require an applicant to disclose his or her criminal history prior to extending a conditional offer of employment. The law defines “conditional employment offer” as an offer “that is conditioned solely 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)” (emphasis added).

Following a conditional offer, an employer may take adverse action (i.e., refusing to hire, refusing to promote or revoking an offer of employment or promotion) on the basis of criminal history only after determining that the individual is unsuitable for the job based on an individualized assessment that considers, at minimum, the nature and gravity of any offenses in the individual’s criminal history, the length of time since the offense and completion of the sentence, and the nature and duties of the job for which the individual has applied.

Employers also may not publish information stating or implying that an individual’s criminal history automatically disqualifies him or her from consideration for a job. Unlike other recently enacted “ban the box” laws, however, the Austin law expressly provides that it is permissible for employers to explain to applicants in writing the individualized assessment system that the employer uses to consider criminal history.

The law does not apply to a job for which a federal, state, or local law, or compliance with a legally mandated insurance or bond requirement, disqualifies an individual based on criminal history. The law also does not apply to the United States; a corporation wholly owned by the government of the United States; a bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Code; the state or a state agency; or a political subdivision of the state.

Employers who fail to comply within 10 days of receiving a written notice of a violation from the city can be assessed a civil penalty of $500. Such civil penalties cannot be imposed, however, for violations that occur prior to April 4, 2017 (the first anniversary of the effective date of the law).