Ban the Box Laws in Texas: Criminal History in Hiring

The federal ban the box rule applies only to federal contractors and subcontractors under Executive Order 11246 and the Office of Management and Budget's implementing rules (41 CFR Part 60-300.13). This rule requires federal contractors to delay inquiries about criminal history until after a conditional job offer has been made to the applicant. The rule covers federal contractors with 15 or more employees and does not apply to private employers, state governments, or local governments unless they receive federal funding.

The EEOC has issued guidance (29 CFR Part 1602) stating that while employers may consider criminal convictions in hiring decisions, blanket policies that automatically exclude people with any criminal record may violate Title VII of the Civil Rights Act of 1964 if they have a disparate impact on protected classes (particularly African Americans and Hispanics) and the employer cannot show the exclusion is job-related and consistent with business necessity. The EEOC encourages individualized assessment of convictions, considering the nature and seriousness of the crime, the time elapsed since conviction, and the nature of the job.

Federal law does not prohibit employers from conducting background checks that include criminal history records. The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) governs how employers obtain and use criminal background reports. Employers must provide candidates with disclosure and authorization forms before requesting a background check, and must provide notice if adverse action is taken based on the report. The FCRA allows employers to obtain records of arrests, indictments, convictions, and sentences from public criminal justice agencies.

Texas does not have a ban the box law that restricts when private employers can ask about criminal history during the hiring process. Texas Government Code section 411.0725 addresses criminal record access and use but does not create hiring timeline restrictions like those found in ban the box states such as California, New York, or Illinois. This means Texas employers are free to ask about criminal history on initial job applications, during the screening process, or at any other point in hiring.

Unlike states with ban the box laws, Texas does not require employers to wait until after a conditional job offer before inquiring about criminal convictions. Texas employers also are not required to conduct individualized assessments of criminal convictions under state law, though the federal EEOC guidance may still apply to employers subject to Title VII if their hiring practices have a disparate impact on protected classes.

However, Texas employers cannot rely on arrest records alone. Texas Government Code section 411.0725 distinguishes between arrests and convictions: an arrest without conviction has limited legal relevance and cannot be used as a blanket ground for employment decisions. Additionally, Texas employers must consider that some criminal records may be sealed or expunged under Texas Code of Criminal Procedure Article 55.01, and employers cannot discriminate based on sealed or expunged records.

Federal contractors headquartered in or performing federal contracts in Texas are subject to the federal ban the box rule and must delay criminal history inquiries until after conditional offer. The only significant state-level protection in Texas related to criminal history in employment is that employers cannot automatically exclude applicants based on criminal convictions without individualized assessment if doing so violates federal anti-discrimination laws.

Texas does not provide a private right of action under state law for ban the box violations, meaning workers must rely on federal remedies if applicable (federal contractors) or Title VII disparate impact claims if a blanket criminal conviction policy violates federal civil rights law.

Texas employers are not subject to state ban the box restrictions and may ask about criminal history at any stage of hiring. Private employers with no federal contracts have broad discretion to inquire about and consider criminal convictions in hiring decisions, subject only to federal anti-discrimination law.

One significant exception: employers cannot use arrest records that did not result in conviction as an independent basis for rejection. Under Texas Government Code section 411.0725, arrested individuals have the right to access and challenge arrest and conviction records, and employers cannot use arrest-only records in hiring decisions. If an applicant was arrested but not convicted, the employer cannot use that arrest alone as grounds for rejection.

Another exception applies to federal contractors. If an employer has a federal contract valued at $25,000 or more, or is a federal subcontractor, it must comply with the federal ban the box rule (41 CFR Part 60-300.13). These employers must not ask about criminal history until after making a conditional job offer.

Employers may also be limited by the individualized assessment requirement implied by EEOC guidance on Title VII compliance. While Texas law does not mandate individualized assessment, employers who use blanket policies (e.g., automatically rejecting all applicants with any felony conviction) may face Title VII disparate impact liability if the policy has a disproportionate effect on African American or Hispanic applicants and is not job-related and consistent with business necessity.

Certain occupations have statutory restrictions on hiring individuals with specific criminal histories. For example, Texas Education Code section 21.006 prohibits hiring school teachers with certain criminal convictions. These occupation-specific restrictions are separate from general hiring practices and are not subject to ban the box rules.

Finally, Texas employers cannot discriminate against applicants based on sealed or expunged records. If an applicant's criminal record has been sealed under Texas Code of Criminal Procedure Article 55.01, the employer cannot inquire about, obtain, or use that record in hiring decisions.

Step 1: Document the hiring interaction and decision. If you are an applicant, keep copies of all job applications, emails, and any conversations about criminal history inquiries. Note the date and method of each question about criminal history (application form, phone screen, interview). If you are an employer concerned about compliance with federal ban the box rules, document the stage at which criminal history is inquired (application, after phone screen, after conditional offer) and ensure the inquiry timing is consistent across all applicants.

Step 2: Determine whether you have an internal complaint process or HR department. If the employer has a human resources department, submit a written complaint explaining that you were asked about criminal history at a stage that may violate federal law (if you are a federal contractor candidate) or that the employer's blanket criminal conviction policy had a disparate impact on you based on race or national origin. Request a written response within 10 business days. Keep copies of all communications. This step creates an internal record and may resolve issues quickly.

Step 3: File with the appropriate agency. If you believe the employer violated the federal ban the box rule, file a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/agencies/ofccp/about/contact-us or by phone at 1-866-4-USDOL (1-866-487-3652). If you believe the employer's criminal history inquiry or decision violated Title VII (disparate impact based on race or national origin), file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) at www.eeoc.gov/filing-charge-discrimination or by calling 1-800-669-4000. The deadline to file an EEOC charge in Texas is 180 days from the date of the alleged violation (or 300 days if Texas is also a deferral state, which it is not). You do not need to file with the state first; you can file directly with the EEOC. When filing, provide your name, contact information, the employer's name and address, the date of the alleged violation, and a detailed description of what happened.

Step 4: Expect the investigation process. The OFCCP will send the employer a notice of the complaint and request documents showing the employer's hiring records, job descriptions, and the timing of criminal history inquiries for a sample of applicants. The investigation typically takes 30-60 days but can extend longer if the employer fails to cooperate. If the EEOC receives a charge, the agency will attempt conciliation between you and the employer. If conciliation fails, the EEOC may file a lawsuit on your behalf or issue a right-to-sue letter allowing you to sue privately. The EEOC's investigation typically takes 180-365 days.

Step 5: Consult an employment attorney. If the employer is a federal contractor and violated the federal ban the box rule, you may need an attorney who specializes in federal contractor compliance to pursue a complaint with the OFCCP and negotiate remedies. If you are filing an EEOC charge based on Title VII disparate impact, consult an employment attorney experienced in discrimination claims. An attorney can help you gather evidence of disparate impact (statistical evidence showing the policy excluded a disproportionate percentage of applicants of a particular race or national origin), negotiate a settlement, or represent you in litigation. Most employment attorneys work on contingency (no upfront cost) in discrimination cases.