In the dynamic sphere of employment law, changes can sometimes be drastic and swift, leaving both employers and potential employees adjusting to new realities. Recently, Texas has superseded local laws and ordinances which go beyond or clash with state policies. Notably, this includes Austin's Fair Chance Hiring Ordinance, popularly known as Austin’s "ban the box" law. This decisive move is significant for employers in Austin who incorporate criminal background checks as part of their employment screening process as it’s an opportunity to swiftly adapt and thrive within the evolving landscape of legal compliance.
The Prelude to Preemption
Understanding the roots of the recent developments requires a glimpse into the legal principle of preemption. It is a concept where a superior governmental body overrules or nullifies the directives of a lower governmental unit. In Texas, this means that state laws are now overshadowing local laws and ordinances, essentially declaring them null.
The Texas House Bill 2127, also known as The Texas Regulatory Consistency Act or the "Death Star" law, is at the forefront of this transformation. Its core objective is to harmonize regulations that have been enforced inconsistently across the state, bringing back regulatory control to the state level and preventing cities and counties from establishing or enforcing any rules governing labor practices that exceed or conflict with state regulations. This change, which takes effect from September 1, 2023, touches various local laws spanning from workers' rights to residential issues.
A Spotlight on Austin
Austin has been notably affected by this legislative change, especially in the hiring sector. In 2016, Austin initially passed their fair chance hiring and "ban the box" legislation, which restricted private employers from inquiring about job applicants' criminal histories until a conditional job offer was extended.
The New Landscape for Employers
With the recent changes, employers can enjoy more flexibility during the initial stages of the hiring process, as they are no longer bound by prohibitions on criminal history inquiries or the subsequent adverse action requirements. This enhanced freedom provides a broader spectrum for evaluating candidates. While there are new elements to consider, employers have the empowering choice to adopt these previous guidelines within their corporate policy if they see fit.
Initially, the Austin Ordinance mandated employers to evaluate a candidate's criminal history meticulously, assessing the nature and gravity of the offenses, the time elapsed since the offenses and completion of the sentence, and the duties and responsibilities tied to the job being sought. This scrutiny aligned with the guidance from the US Equal Employment Opportunity Commission on considering arrest and conviction records in employment verdicts. However, the preemption places employers at a crossroads between inclusivity, anti-discrimination, and due diligence, necessitating a careful approach to avoid inadvertent discrimination while aligning with the "Death Star" law.
Steering Through Compliance
As the legal panorama evolves, employers in Austin are pressed to redefine their hiring strategies. Here are some pivotal aspects for employers to consider during this transition:
1. Revising Policies
Re-evaluating and modifying hiring policies to echo the state's preemption stance will be a significant first step. Employers may find it beneficial to assess criminal history earlier in the application process and should adapt their job applications and interview scripts accordingly.
2. Education and Training
Managers and HR personnel, the primary decision-makers in employment, should be equipped with comprehensive training on policy modifications to ensure uniform application and to mitigate potential discriminatory and unconscious bias hazards.
3. Individualized Assessment
Despite the state preemption, employers should maintain an individualized approach in scrutinizing a candidate's criminal history, weighing the relevance of the offense to the job at hand, and considering aspects like recency and gravity.
4. Uniform Decision-Making and Documentation
Upholding a consistent policy application and maintaining detailed records of hiring decisions can showcase fairness in the selection process. Employers should leverage tools that help track the individual assessment process effectively.
5. Collaborating with Legal Experts
Seeking counsel from legal experts acquainted with Texas preemption and hiring regulations is a judicious approach, especially considering the expected legal challenges from various municipalities affected by the "Death Star" law.
How Can DISA Help?
As Texas reaffirms its jurisdiction in the domain of fair chance hiring legislation, employers in Austin and DeSoto find themselves revisiting and possibly reshaping their hiring methodologies. This scenario demands a careful reassessment of hiring policies to align with the evolving legal scenario. By proactively addressing compliance and maintaining a harmonious equilibrium between inclusivity and due diligence, employers can maneuver through these shifts while upholding fair and informed hiring practices. As we acclimate to this new framework, the focus remains steadfast on the business community to cultivate an equitable employment sphere within the confines of the law. DISA can help employers tread through these uncharted waters in the employment sector by maintaining fairness and inclusivity in hiring practices, even in the face of regulatory changes.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.