Excerpted from a Forbes Article by Alonzo Martinez

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 the regulations of a lower level of government. In the context of Texas, this means 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. Texas’s Death Star law 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 efforts. As a result, Austin’s Fair Chance Hiring Ordinance can no longer be enforced by the city.

Impact on Employers

For employers in Austin who have been diligently following the “ban the box” measure, the preemption introduces a seismic shift in 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.

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.

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, Austin employers may need to recalibrate their hiring practices. Considerations for employers include:

  1. Reviewing and Revising Policies: Employers may revisit and update their hiring policies to align with the state’s preemption stance.
  2. Education and Training: Individuals who make employment decisions should receive comprehensive training on any revisions to policies and processes to ensure consistency.
  3. 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.
  4. Documentation and Decision-Making Uniformity: Maintain meticulous records of hiring decisions.
  5. 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.

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