Understanding Texas' Recent Ban the Box Policy: Essential Information for Employers Regarding HB 2466
Employers in the Lone Star State might need to revamp their hiring strategies as House Bill 2466, if enacted, could restrict when they can bring up an applicant's criminal history. Set to kick off on September 1, 2025, this legislation pushes employers to delay inquiries about criminal records until after an applicant has shown they are qualified for the position, a practice known as "Ban the Box."
While this approach aligns with the broader national push for fair chance hiring, Texas employers face certain challenges adhering to the new rules. A significant hurdle is the vague language outlining when an applicant is considered qualified, leaving employers uncertain about the right moment to pry into a candidate's criminal past.
Scope and Exemptions of HB 2466
Unlike more comprehensive fair chance hiring initiatives in states like California and Illinois, Texas's bill is more modest in scope, targeting private employers with fifteen or more staff members and public-sector outfits regardless of their size. However, the legislation does not extend to independent contractors or gig workers, so companies that depend on freelance labor won't need to adapt their hiring techniques.
Furthermore, several jobs are exempt from the bill, including healthcare, financial services, law enforcement, and childcare positions, where background checks are required by law. These institutions can continue using criminal background checks throughout the hiring process, ensuring they comply with state and federal regulations.
Uncertainty Surrounding "Otherwise Qualified"
The "otherwise qualified" requirement is a major compliance challenge in HB 2466, as the legislation fails to clarify the exact meaning of the term or outline an assessment process for employers to follow. The ambiguity raises a crucial question: When is an applicant considered qualified? It seems like a two-step background check approach could be necessary, where non-criminal qualifications — such as education, work history, references, and necessary licenses — are assessed first, before delving into criminal history.
Individualized Assessments: A Recommended but Not Compulsory Practice
Though HB 2466 does not mandate an individualized assessment of a candidate's criminal record prior to hiring, the Equal Employment Opportunity Commission (EEOC) firmly advises this practice. This process involves evaluating the specifics of an applicant's criminal record, including the nature and severity of the offense, the elapsed time since conviction, and the relevance of the offense to the job in question.
These assessments prevent blanket exclusions, which could lead to discrimination claims under Title VII of the Civil Rights Act of 1964. Although HB 2466 does not require individualized assessments, neglecting this approach could heighten legal exposure for employers, particularly if hiring practices negatively impact certain protected classes.
Companies in multi-jurisdictional operations must also consider local fair chance hiring laws, which may impose stricter requirements. For example, Austin, Texas, demands individualized assessments and offers a copy to applicants before taking adverse action based on criminal history, while DeSoto, Texas, extends Ban the Box protections to independent contractors, a category exempted by HB 2466.
Since HB 2466 lacks a preemption clause, businesses must adhere to both state law and local ordinances to avoid legal repercussions related to unfair hiring practices.
Preparing for Change: Actions Employers Must Take
As Texas employers get ready for HB 2466, a timely review of job applications, adaptation of hiring policies, and training for HR teams should be prioritized. While the legislation does not disallow criminal history considerations altogether, it does call for adjustments in when and how employers address the issue.
Readying for Fair Chance Hiring: Steps Employers Should Take
- Job Application Updates: Employers must revise job applications, removing criminal history questions at the initial stage.
- Hiring Policy Revamp: Employers should review and adjust hiring policies to ensure compliance with the new legislation, with a focus on when criminial history will be considered.
- Training for HR Teams: HR personnel and hiring managers should be instructed on the changed requirements and understand how and when to dig into an applicant's criminal past.
- Notable Exemptions: Employers must remain aware of exemptions, including positions in healthcare, finance, law enforcement, and childcare, where criminal background checks can be conducted as usual.
- Compliance with Local Ordinances: For firms operating in multiple cities, adherence to individualized assessment requirements in Austin and broader worker protections in DeSoto is essential to avoid legal challenges.
As the Texas employment landscape shifts towards fair chance hiring, employers must juggle compliance obligations with the need for efficient and legally sound hiring practices. By taking proactive measures to update hiring policies, revise job applications, and educate HR teams, businesses will be well-prepared for seamless compliance when this new legislation goes into effect.
- Employers in Texas, particularly those with 15 or more employees, may need to revise their hiring strategies due to House Bill 2466, which delays criminal history inquiries until after a candidate has demonstrated qualification for the position.
- One of the challenges in adhering to the new rules is the vague definition of when an applicant is considered qualified, creating uncertainty for employers about the appropriate time to investigate a candidate's criminal past.
- The "Ban the Box" approach outlined in HB 2466 aligns with the broader national push for fair chance hiring but exempts certain jobs, such as healthcare, financial services, law enforcement, and childcare positions, where background checks are legally required.
- HB 2466 fails to clarify the definition of "otherwise qualified" or provide an assessment process for employers, raising questions about when an applicant should be considered qualified.
- The Equal Employment Opportunity Commission (EEOC) recommends an individualized assessment of a candidate's criminal record, which involves evaluating the nature and severity of offenses, elapsed time since conviction, and relevance to the job.
- Texas employers operating in multiple cities may also need to comply with local fair chance hiring laws, such as individualized assessments in Austin and broader worker protections in DeSoto, to avoid legal repercussions related to unfair hiring practices.
- To prepare for HB 2466, Texas employers should revise job applications, revamp hiring policies, provide training to HR teams, adhere to exemptions, and consider local ordinances to ensure seamless compliance with the new legislation.
