Texas Business Today - February 2025

Texas Legislation – 89^th General Session – 2025

By: Tommy Simmons

Legal Counsel to Commissioner Joe Esparza

The 2025 general session of the Texas Legislature will extend from January through the end of May, 2025. It will be very important for Texas employers due to the significant number of employment-related bills that have been and will be filed this year. Although not all bills make it into the law, all of the bills are important because they tend to reflect what is on the minds of the members of the Legislature and of the voters who elect them. Moreover, some bills that do not pass in one session may pass in a future session, so they serve as predictors of legal trends in the state. With that in mind, here is a survey of some of the significant employment-related legislation that has been filed up through the end of January, 2025. The list is organized into subject areas and shows the bill number and the bill caption indicating the subject matter of the bill:

Civil Rights - Discrimination

Employee / Family Leave

Human Resources – General / Non-Leave Benefits

Immigration / E-Verify

Pay / Wage and Hour

Regulatory / Finance / Enforcement / Criminal Penalties

Unemployment Insurance

Workers’ Compensation

To Ask or Not to Ask: Criminal History Inquiries During Hiring

By: Elsa Ramos

Legal Counsel to Commissioner Joe Esparza

“Ban the Box” or “Fair Chance Hiring” is a practice or policy that seeks to remove questions about an applicant’s criminal history from job applications. The purpose is to give individuals who have been previously arrested or convicted of a crime a chance of being considered for employment based on their qualifications, rather than being automatically excluded from consideration. 

Across the Country

Many states have implemented statewide laws or policies which prohibit employers from asking about an applicant’s criminal history on job applications. In some states, laws or policies affect only public employers, while a few states have extended the ban to private employers. 

Depending on the state, the requirements of “Ban the Box” legislation can vary greatly. Some states delay asking about an applicant’s criminal record until the job interview. Some prohibit background inquiries until a job offer has been made. Others allow employers to consider convictions after reviewing the application and discussing employment with the applicant.

Texas is not among these states. 

In Texas

Texas does not ban these types of inquiries during the hiring process or employment.  While a few Texas cities and counties had implemented “Ban the Box” ordinances a few years ago, in 2023, the Texas Regulatory Consistency Act preempted local laws that conflicted with state law. 

Federal Law

Aside from The Fair Chance to Compete for Jobs Act, the federal government does not have a statute that specifically restricts employers in any state from asking about an applicant’s criminal history.  However, the Equal Employment Opportunity Commission (EEOC) has noted that disqualifying applicants from consideration for employment, or making adverse employment decisions of current employees, based solely on their criminal history, may have a disparate impact on certain minority groups. 

This could result in claims of employment discrimination under Title VII of the Civil Rights Act based on the legally protected characteristics of race and national origin.  Title VII, which applies to employers with at least 15 employees, prohibits discrimination in employment based on certain characteristics.

EEOC Guidelines

In evaluating disparate impact discrimination claims based on race or national origin, the EEOC looks at an organization’s policies and/or actions, related to investigations or inquiries into background checks, to determine whether the organization’s hiring practices are “job related and consistent with business necessity.”  The EEOC has established some guidelines for employers to follow:

1. Arrests and convictions should not be treated the same. Arrests alone are not proof of criminal conduct. Convictions, on the other hand, are usually sufficient evidence that individuals engaged in specific conduct or behavior.  Because of this difference, employers should not make employment decisions based solely on an arrest record.
   
   
2. In determining whether specific criminal conduct is job-related and consistent with business necessity, employers should consider: 1) the nature of the offense or conduct, 2) the length of time that has passed since the offense or disposition of the case, and 3) the nature of the job in question. The EEOC’s website includes detailed explanations and examples of these factors.  Employers are not required to hire people with criminal convictions, but the EEOC recommends that employers individually assess an applicant using these three factors before deciding to deny employment based on a prior criminal record.
   
   
3. If state and local jurisdictions have laws or regulations that prohibit employers from hiring or employing individuals with certain criminal convictions, such as the licensing requirements for nursing homes and childcare facilities in Texas, then these businesses should follow these requirements.

In Conclusion

Most employers in Texas are free to ask about, and consider, criminal histories during any point of the hiring process or employment relationship.  However, by refraining from asking about criminal histories in job applications, employers minimize the risk of discrimination claims for employment decisions made based on an individual’s criminal record.

A best practice would be to wait to inquire about an applicant’s criminal background until the employer is ready to make a job offer.  Employers can make job offers conditional on applicants agreeing to, and passing, a criminal history check.  (Please note: Employers must comply with the Fair Credit Reporting Act when performing background checks. To ensure compliance with federal law, employers should review guidance from the Federal Trade Commission.)

If the applicant’s criminal background reveals any incidents that are of concern to the employer, applying the EEOC’s guidelines before taking any adverse employment action will assist the employer in showing that its decision was made on factors which were job-related and consistent with business necessity.