April 4, 2016, Austin’s Fair Chance Ordinance (20160324-019) took effect, view the ordinance HERE. Below is a recap of the ordinance.
Who:
The new Ordinance applies to any private employer that employs at least 15 individuals whose primary work location is in the City of Austin for each working day in 20 or more calendar weeks in the current or preceding calendar year. Also applies to “an agency acting on behalf of an employer” such as a staffing agency, to solicit criminal history records and make an individualized assessment when the staffing agency has either identified a job for the employee, or placed the employee in a staffing pool. The Ordinance does not apply to the federal, state, or political subdivisions, or any “job for which a federal, state, or local law disqualifies an individual based on criminal history.”
What:
An employer cannot inquire via application or during initial interview process about an applicant’s criminal history or conduct a criminal background check until after extending a conditional employment offer.
Employers cannot take adverse action against an applicant because of their criminal history without first conducting an individualized assessment. At a minimum an employer must consider the following points during the individualized assessment:
• The nature and gravity of the offenses in the applicant’s criminal history
• The length of time since the offense and completion of the sentence
• The nature and duties of the job for which the applicant has applied
The Ordinance expressly permits a covered employer to withdraw a conditional offer of employment for any lawful reason, including the determination that an individual is unsuitable based on an individualized assessment.
Adverse action includes a refusal to hire or promote, as well as revocation of the conditional offer of employment or promotion. An employer who takes adverse action against an applicant because of criminal record must inform the applicant in writing that the adverse action was based on their criminal record.
When:
Penalties will not be enforced for violations before April 4, 2017 (one year from the effective date) by The Equal Employment/Fair Housing Office who is empowered to impose civil penalties up to $500 for each job/hiring violation. Violations that occur during the first year will result in a written warning, with civil penalty being assessed for violations after April 4, 2017.
Potential claimants must file complaints no later than 90 days after they receive knowledge of an alleged violation, but not later than one year from the alleged violation.
The Equal Employment/Fair Housing Office is required to obtain voluntary compliance before assessing any penalties. An employer must receive written notice of the violation and if an employer fails to cure a violation within ten business days after receiving written notice, it is liable for a civil penalty of up to $500.
Recommendations:
Review your current application (paper & online) and other company documents to ensure compliance.
Notify hiring & interviewing personnel of what cannot be asked and when.
Establish criteria for evaluating criminal history during individualized assessment.
Consult legal counsel with specific questions and changes you may want to do with your hiring practices.