The Wrong Way to Comply with Ban the Box: Austin, Texas

Nick Fishman

Employment Background Checks and Ban the Box in Austin, Texas

Question: What do you get when you combine ban the box” compliance with utterly idiotic hiring practices? (I know I’m supposed to be diplomatic but no can do in this instance.)

Answer: Ask the city of Austin, Texas who hired a six-time convict to work in their public library . . .  that just plead guilty to attempted indecency with a child.

Before we dig into the details, let me show you the resume (see: rap sheet) of said employee, Joe Heath brought with him to the Austin Public library where he would come in regular contact with the public, including children.

  • 1987 – Trespassing
  • 1987 – Assault 1-year probation
  • 1990 – Assault 1-year probation
  • 2004 – Aggravated Assault w/ deadly weapon  4-years probation
  • 2005 – Money Laundering  = >$20K <$100K, sentenced to 4-years jail in 2007
  • 2006 – Hindering Secured Creditors  = >$100K – $200K

And here’s the kicker, not only didn’t the city of Austin fail to ask about past convictions on their job application, their hiring manager never bothered to ask at any point in the hiring process. Worse, they never conducted an employment background check.

How Did This Guy Get Hired?

The comedy of errors that led to Joe Heath’s hiring and retention would be funny if the consequences weren’t so serious. Read on to learn how you can avoid these mistakes when it comes to complying with ‘Ban the Box’ laws and exercising responsible hiring practices through employee background checks.

As I’ve mentioned in previous blog posts, employers are generally unencumbered beyond the federal requirements when conducting background checks in the state of Texas. However in 2008, the city of Austin passed a “ban the box” law forcing city employers to remove the question on their job application, which asks if the candidate was ever convicted of a crime. So when Heath applied for the job he was under no obligation to divulge information about his past convictions.

But here’s where it all went haywire. Evidently, the city didn’t think it was important to ask the question later in the hiring process which is what most of the ‘ban the box’ laws are designed to do–just push the question until later in the process.

To compound this circus act, the city didn’t think they should bother to conduct a background check either. I guess they were just comfortable with a leap of faith. Well, in addition to the list of criminal convictions I shared earlier, perhaps they would have cared that Heath actually worked for Austin’s Water Utility from 1995 to 2002. According to reports he was fired in 2002 for “absenteeism, failure to comply by the terms of time and attendance disciplinary probation, and unauthorized use and/or removal of City of Austin property.”  

Raise your hand if you can see why this collection of information wouldn’t have been important to evaluate before hiring Heath. Anyone. Anyone. Buehler.

Keeping Score: 1-0

Candidates with a laundry list of serious convictions: 1

City of Austin & Residents of Austin: 0

So for the politicians and bureaucrats that think these “candidate friendly” policies are benign and without consequence, you might want to take note. Exactly who are you trying to protect?

Tips for Employers Required to Comply with ‘Ban the Box”

  • Don’t forget to ask the candidate to divulge past convictions later in the hiring process.  Candidates might not always be honest, but at least you’ve tried.
  • Don’t forgo the employment background check altogether. That’s just . . . stupid.
  • If you find convictions that might suggest future behavior, please make an informed judgment about whether that person should be working for you.

For more on this story, check out the video below:



Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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