In the intricate landscape of employment law, the Lone Star State has recently taken a bold step by preempting local laws and ordinances that surpass or conflict with state laws, such as Austin’s Fair Chance Hiring Ordinance, or “ban the box” law. This move carries significant implications for employers in Austin who conduct criminal background checks of job candidates requiring that employers recalibrate their hiring practices and understand the shifting sands of compliance.
Understanding Preemption
Preemption, in the realm of law, refers to the concept where a higher level of government authority supersedes or displaces the regulations of a lower level of government. In the context of Texas, this means that state laws take precedence over local laws and ordinances, effectively rendering them null and void.
Texas House Bill 2127, referred to as The Texas Regulatory Consistency Act or the “Death Star” law, aims to eliminate the varying set of regulations that are inconsistently enforced throughout the state. The Act intends to restore regulatory control over commerce to the state level by preventing cities and counties from enforcing or enacting any legislation that governs labor practices in a manner exceeding or conflicting with state regulations. Texas’s Death Star law will impact a myriad of local laws affecting everything from workers’ rights to residential issues and becomes effective September 1, 2023.
Hiring in Austin is directly impacted by Texas’s new law. While Austin may have been at the forefront of fair chance hiring and “ban the box” legislation by passing a law in 2016 prohibiting private employers from asking job applicants about their criminal histories until after a conditional job offer, Texas has asserted its authority by preempting these local efforts. As a result, Austin’s Fair Chance Hiring Ordinance can no longer be enforced by the city. A similar ordinance, passed in DeSoto, Texas, in 2021 will also be unenforceable.
Impact on Employers
For employers in Austin who have been diligently following the “ban the box” measure, the preemption introduces a seismic shift in their hiring protocols. It is crucial for employers to recognize that the prohibition on criminal history inquiries at the initial stages of the hiring process and additional adverse action requirements will no longer be required. While this may offer more latitude in evaluating candidates, it also presents new complexities and considerations.
For example, Austin’s Fair Chance Hiring Ordinance requires that employers conduct an individualized assessment of a candidate’s criminal history, considering the nature and gravity of the criminal offenses, the time since the offenses occurred and the sentence was completed, and the nature and responsibilities of the job sought by the candidate. The assessment is similar to the guidance provided by the US Equal Employment Opportunity Commission concerning the consideration of arrest and conviction records in employment decisions. Austin’s ban the box law also requires that employers who deny candidates employment based on their criminal history notify the candidate as part of the adverse action process that the adverse action was based on the individual’s criminal history.
The preemption of Austin’s “ban the box” law brings to the forefront a delicate balancing act between inclusivity, anti-discrimination, and due diligence. Employers must now tread carefully to avoid unintentional discrimination while complying with Texas’s “Death Star” law.
Navigating Compliance
To help ensure compliance with the evolving legal landscape, Austin employers may need to recalibrate their hiring practices. Considerations for employers include:
- Reviewing and Revising Policies: Employers may revisit and update their hiring policies to align with the state’s preemption stance. While not explicitly required, because Austin’s ban the box law will be preempted, employers who find it valuable to assess criminal history early in the application process may revise job applications and interview scripts to account for the reintroduction of criminal history inquiries.
- Education and Training: Individuals who make employment decisions, such as managers and HR personnel, should receive comprehensive training on any revisions to policies and processes to ensure consistency in their application and minimize potential pitfalls related to discrimination and unconscious bias.
- Individualized Assessment: While no longer expressly required by Austin’s ban the box law because of state preemption, employers are reminded of the EEOC’s enforcement guidance concerning the consideration of arrest and conviction records in employment decisions. Employers should adopt an individualized approach when assessing a candidate’s criminal history. Evaluate the relevance of the offense to the job, considering factors such as recency and severity.
- Documentation and Decision-Making Uniformity: Maintain meticulous records of hiring decisions, outlining the rationale behind each candidate’s evaluation. Consistency in the application of policies is paramount to demonstrating fairness. Employers are encouraged to utilize tools that can help create an audit trail of the individualized assessment process.
- Collaboration with Legal Counsel: Given the intricate nature of employment law, seeking guidance from legal professionals well-versed in Texas preemption and hiring regulations is a prudent step. Further, the enforcement of Texas’s Death Star law is expected to be challenged by several municipalities whose laws and ordinances will be eliminated by the law, making compliance with impacted laws and ordinances a moving target.
Texas’ preemptive move in the realm of fair chance hiring legislation challenges Austin and DeSoto employers to rethink their hiring strategies. The state’s assertion of authority necessitates reevaluating hiring policies to align with the changing legal landscape. By proactively addressing compliance and maintaining a delicate balance between inclusivity and due diligence, employers can navigate this shift while ensuring fair and informed hiring decisions. As we adapt to this new paradigm, the spotlight remains on the business community to foster an equitable employment environment within the bounds of the law.
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