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Texas House Bill Threatens Austin Ordinance Protecting Felons From Employment Discrimination

July 5th, 2017 by David Minces

Recidivism, the tendency for felons to reoffend, is a major problem in the United States.  To try to understand the causes and effects of recidivism, the Bureau of Justice conducted a five-year study on state prisoners in thirty states.  It found that two thirds of prisoners released in 2005 were rearrested within three years and three quarters were rearrested within five years.  Recidivism in the United States has been likened to a revolving door.  Far too often, prisoners finish their sentences and reenter civilian life just to commit another crime and be sentenced again.

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Reasons for recidivism

Several factors may contribute to this astonishingly high rate of recidivism.  The prison system might not rehabilitate prisoners as well as it should.  Norway has a recidivism rate of only 20% and they approach prison much differently than the U.S.  Rather than focusing on punishment, Norway teaches its prisoners skills that will enable them to succeed upon release.  Prison cells resemble college dorm rooms.  Instead of having bars on their windows, Norwegian prisoners are trusted with the sharp objects regular houses have.  Norway’s philosophy is that lack of freedom is punishment enough and prison should be used for rehabilitation.  Or, a conviction may suggest a penchant for disobedience, poor judgement, and misconduct.  Character flaws may mean that some criminals will always be criminals.  However, societal factors may bear some of the blame for recidivism.  Nowadays, many if not most employers discriminate against those with a criminal history.  Many employers believe that hiring felons may jeopardize the safety of clients, coworkers, and themselves.  After all, former state prison convicts have a 75% chance of being arrested within five years after release.  However, this discrimination harms felons who recognize that they made a mistake in the past and seek to move on.  The chronic unemployment that many felons experience due to their background may force them to return to a life of crime when legitimate means of making a living are unavailable.

Protections for felons in Austin

In an attempt to address recidivism and unemployment, the city council of Austin, Texas enacted the Fair Chance Hiring Ordinance in April last year.  Due to this ordinance, any company based in Austin with fifteen or more employees cannot ask a job applicant about his criminal history or perform a background check until the applicant receives a conditional offer of employment.  The ordinance also says that any companies that denies employment based upon an applicant’s criminal history must be able to explain why it makes the applicant unfit for his specific employment duties.  Currently, state law in Texas, an employment-at-will state, offers no such protections for employees with a criminal background.

House bill jeopardizes Austin’s protections

Possibly because of Austin’s ordinance, Texas Rep. Paul Workman, who represents the western Austin area, introduced Texas House Bill 577 in December of 2016.  This bill would prevent counties and cities from restricting private employers’ access to criminal history and ability to hire based upon it.  The bill would invalidate Austin’s ordinance as well as those of several other cities’.  There is a good chance this bill will pass.  The bill currently sits on the General State Calendar with 76 co-sponsors.  As expected, the bill is vehemently opposed by felons, who make up one twelfth of the American adult population.  In resistance to H.B. 577, many former convicts have given anecdotal stories about their attempts to turn their lives around and the discrimination they face in the employment sector.  Many argue that this bill would only increase the high rates of recidivism.

Increasing employer rights does not always harm felons

Increasing employer rights does not always harm felons, though.  Consider another Texas bill, H.B. 1188 passed in 2013, which amends the Texas Civil Practice and Remedies Code to protect employers from negligent hiring or supervision lawsuits that are based solely on evidence of an employee’s criminal background.  Exceptions exist to this amendment.  Employers who hire people who committed especially egregious crimes, such as sexually violent crimes, or crimes that occurred in similar scenarios as those encountered during employment are not protected.  However, this bill benefits the vast majority of felons who do not commit such crimes as it eliminates one of the biggest reasons why employers forego hiring former offenders.  By protecting employers from lawsuits due to their employees’ criminal background, this amendment helps both employers and felons.

Texas employment law regarding discrimination against felons and criminal background checks is constantly changing.  It is imperative that employers and employees understand their full range of rights with regards to this area.  If you have any questions, do not hesitate to contact Minces PLLC.  Our attorneys have decades of experience in employment law.

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