Another Texas County Bans the Box for Public Employers

For years, cities, counties, and even entire states have enacted a sweeping change to the laws that govern how employers select people to work for them. Called "fair chance" laws, these policies aim to address a serious and ongoing social problem: the major barriers that keep the formerly incarcerated and criminally convicted from obtaining reliable employment. The number of ban the box states in 2022 stands at 37 in total, with 15 states extending fair chance restrictions to all private employers within their borders.

What is a "ban the box" law? In short, it refers to a common question that has appeared on virtually all job applications for decades: "have you ever been convicted of a felony?" The mere presence of this question—and the subsequent prompt to "explain any convictions"—often discourages individuals with criminal records from applying. Although automatic and blanket denials based on criminal history status have largely been discriminatory in most cases, the "box" made it easy for employers to simply select other applications instead.

"Ban the box" laws typically prohibit this question from appearing on employment applications. Many also go even further, requiring employers to conduct job interviews or make a conditional offer of employment before they can perform a background check on the applicant. The reasoning is simple: by delaying these inquiries, employers should evaluate applicants solely on their merits first. Afterward, they can use background check information to guide their final decision based on all the facts.

Despite more than half the states and dozens of cities implementing a version of these rules, many states remain without restrictions. Texas is one such state. With no state-level laws, only a few counties and cities have chosen to ban the box. Of those, only the cities of Austin and DeSoto have banned the box for private employers.

However, there could be signs of momentum at the county level. In mid-2022, Harris County, Texas, home to the city of Houston, adopted a ban the box policy at the county level. Employers and contractors working with the county will not be able to consider non-conviction arrests or misdemeanors that don't carry jail time. Blanket denials are no longer allowed under the policy. There are some limitations—only departments led by appointees, not elected officials, must follow the policy.

Despite its limited scope, the growth of both public and private Fair Chance laws in the state of Texas indicates that advocates could make further inroads in other counties and communities in the future. Fair Chance policies typically enjoy bipartisan support. However, there are currently no further rumblings of new policies on the horizon elsewhere in the state.

Nonetheless, employers should take note. Box-banning and Fair Chance laws are here to stay. Having a well-defined policy for how you screen applicants can help navigate the intricacies of these laws—or prepare your business to adapt quickly should these rules come to your community.