Employers in Texas may soon need to rethink how they approach criminal history in hiring decisions. If passed, House Bill 2466, slated to take effect on September 1, 2025, introduces a statewide Ban the Box requirement that delays when employers can ask about an applicant’s criminal record. While the bill aligns with the broader national movement toward fair chance hiring, it leaves several unanswered questions regarding compliance.
At its core, HB 2466 prohibits Texas employers from asking about criminal history on an initial job application. Instead, employers must wait until an applicant is deemed otherwise qualified and has either received a conditional offer or been invited to an interview before making an inquiry. This shift is intended to give candidates with criminal records a fairer shot at demonstrating their qualifications before facing potential disqualification. However, the bill’s vague language regarding timing presents significant challenges for employers looking to integrate these new requirements into their hiring processes.
The Scope of HB 2466 and Its Limitations
Unlike more expansive fair chance hiring laws in states like California or Illinois, Texas’ bill is limited in scope. It applies to private employers with 15 or more employees as well as all public-sector employers, regardless of size. However, it does not extend to independent contractors or gig workers, meaning companies that rely on freelance or contract labor will not be required to alter their hiring processes.
Additionally, the bill excludes positions where criminal background checks are required by law, such as jobs in healthcare, financial services, law enforcement, and childcare. Employers in these sectors may continue conducting background checks at any stage in the hiring process, provided they comply with existing state and federal regulations.
Uncertainty Around the “Otherwise Qualified” Requirement
A key compliance challenge in HB 2466 is its requirement that an employer may only inquire into an applicant’s criminal history after determining that the candidate is otherwise qualified. However, the bill does not define what otherwise qualified means, nor does it outline a specific process for employers to follow.
This ambiguity raises an important operational question: At what point is an applicant considered qualified? The wording suggests that an employer may need to conduct a bifurcated background check, where non-criminal qualifications—such as verifying education, employment history, professional references, and required licensures—are assessed first, before conducting a criminal history search.
If this interpretation holds, employers may need to overhaul their hiring processes, splitting screening procedures into multiple phases to avoid premature criminal history inquiries. This could lead to delays in hiring timelines, increased administrative burdens, and added costs for employers who rely on comprehensive pre-hire background screening. Employers should be prepared for further legal interpretation of this provision as the law nears implementation.
Individualized Assessments: Recommended but Not Required
While HB 2466 does not mandate that employers conduct an individualized assessment of a candidate’s criminal record before making a hiring decision, employers should be aware that the Equal Employment Opportunity Commission (EEOC) strongly recommends this practice.
An individualized assessment is a process in which an employer evaluates the specifics of an applicant’s criminal record, including:
- The nature and gravity of the offense
- The time elapsed since the conviction
- The relevance of the offense to the job in question
This approach helps prevent blanket exclusion policies, which the EEOC has warned may result in discrimination claims under Title VII of the Civil Rights Act of 1964. While HB 2466 does not require individualized assessments, employers who ignore this best practice may increase their legal exposure, particularly if their hiring policies disproportionately impact certain protected classes.
Employers who operate across multiple jurisdictions must also consider that local fair chance hiring laws may impose stricter requirements. In Austin, Texas, for example, private employers must conduct an individualized assessment and provide a copy to the applicant before taking adverse action based on criminal history. Similarly, DeSoto, Texas, goes even further by extending Ban the Box protections to independent contractors, a coverage area that HB 2466 notably omits.
Since HB 2466 does not include a preemption clause, employers cannot rely on state law alone and must comply with local fair chance ordinances where they operate. Failing to meet the most stringent applicable requirements could expose employers to legal risks, including claims of unfair hiring practices.
Navigating Compliance: Next Steps for Employers
As Texas employers prepare for HB 2466, now is the time to review job applications, update hiring policies, and train HR teams on the timing of background checks. The bill does not prohibit employers from considering criminal history altogether, but it does require them to adjust when and how they ask about it.
For companies that operate in multiple cities, ensuring compliance with Austin’s individualized assessment mandate and DeSoto’s broader worker protections will be just as important as aligning with state law. Employers should also be aware that while HB 2466 stops short of requiring an individualized assessment, the EEOC’s guidance makes it clear that failing to evaluate criminal records on a case-by-case basis could increase the risk of legal challenges.
Employers should closely monitor developments as legal interpretations of HB 2466 continue to evolve. The “otherwise qualified” requirement, in particular, could necessitate a phased approach to background screening, requiring businesses to rethink their hiring processes and adjust screening timelines accordingly.
Looking Ahead
As Texas moves toward fair chance hiring, businesses must balance compliance obligations with the need for efficient and legally sound hiring practices. Employers who take proactive steps now—updating hiring policies, revising job applications, and ensuring HR teams understand timing requirements—will be best positioned for compliance if the law takes effect this fall.