From: Staffing
To protect against claims of negligent hiring, Texas employers are encouraged to perform background checks on prospective employees. In fact, Texas law requires background checks on individuals applying for certain state licenses and employees of certain industries. For example, Texas requires background checks on the following:
- Personnel at public and private schools.
- Employees of agencies that provide child care services.
- Employees of facilities caring for the elderly and disabled.
- State information technology personnel.
- Law enforcement personnel.
Criminal History Record Information
The provisions of Texas law regarding access to criminal history record information are located at Tex. Govt. Code §§ 411.081 – 411.1409. Criminal history record information means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions. The term does not include:
- Identification information, including fingerprint records, to the extent that the identification information does not indicate involvement of the person in the criminal justice system.
- Driving record information maintained by the Department of Public Safety.
Use of Criminal History Information
Under Tex. Govt. Code § 411.084, criminal history record information obtained from the Department of Public Safety is for the exclusive use of the authorized recipient of the information and may be disclosed or used by the recipient only if, and only to the extent that, disclosure or use is authorized or directed by statute, rule, or court order. Additionally, criminal history record information obtained from the Federal Bureau of Investigations (FBI) may be released or disclosed only to a governmental entity or as authorized by federal statute, rule, or executive order.
Inquiries Into Criminal History
Unless Texas law requires it, employers should never ask a prospective employee about arrests. The Equal Opportunity Commission (EEOC) and the courts consider such an inquiry to have a disparate impact on minorities. ;A company may ask about convictions and pleas of guilty or no contest; however, the employer should be prepared to show how the criminal record was relevant to the position in question in the event an EEOC complaint is filed.
It is important to note that, in Texas, asking only about convictions will not turn up some forms of alternative sentencing. For example, under the law of deferred adjudication, if the person given such a sentence satisfies the terms of probation, no final conviction is entered on their record, and the person can legally claim never to have been convicted of that offense. However, the person would have plead guilty or no contest to the charge (a plea is necessary in order to qualify for deferred adjudication). To solve this problem employers should phrase their questions something similar to, “During the past ____ years, have you ever been convicted of, or have you plead guilty or not contest to, a felony offense?
Employers should only consider criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm.
Liability for Employment of Persons with Criminal Convictions
Effective September 1, 2013, a cause of action may not be brought against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.
The law does not preclude a cause of action for negligent hiring or failure of an employer, general contractor, premises owner, or other third party to provide adequate supervision of an employee if:
- The employer, general contractor, premises owner, or other third party knew or should have known of the conviction; and
- The employee was convicted of specified offenses relating to sexual violence, fraud, or misuse of property.
Protections provided to an employer, general contractor, premises owner, or third party under this section do not apply in a suit concerning the misuse of funds or property of a person other than the employer, general contractor, premises owner,or third party by an employee if, on the date the employee was hired, the employee had been convicted of a crime that includes fraud or the misuse of funds or property as an element of the offense, and it was foreseeable that the position for which the employee was hired would involve discharging a fiduciary responsibility in the management of funds or property.
Consumer Reports
While employers have the right to perform criminal background checks themselves, many employers elect to use an outside reporting service. Employers that use a reporting service should remember that the federal Fair Credit Reporting Act (FCRA) requires an employer to give written notice that a credit or background check will be performed and obtain a written authorization from the prospective employee. In addition, if the applicant is turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let them know the name and address of the service that furnished the information.
The Texas law governing the use of consumer reports prepared by consumer credit reporting agencies is found at Tex. Bus. & Com. Code §§ 20.01 – 20.10. Consumer reports cover information that relates to one’s credit worthiness, credit standing, credit, credit capacity, debts, character, general reputation, personal characteristics, or mode of living and are used as a factor in establishing the consumer’s eligibility for credit or insurance for personal, family, or household purposes, employment purposes, or other purposes authorized under § 603 of the Fair Credit Reporting Act (FCRA) (15 U.S.C. §§ 1681(a) and (b)).
Under Texas law, a consumer-reporting agency may only furnish a consumer report under any of the following conditions:
- The furnishing of the consumer report is in response to a court order.
- The furnishing of the consumer report is in accordance with the written instructions of the consumer to whom the report relates.
- The furnishing of the consumer report to a person the agency has reason to believe: Texas law (Tex. Lab. Code §§ 103.001-103.005) protects an employer who releases information about a current or former employee to a prospective new employer from defamation, unless the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed.
The following are some practical tips on how to avoid defamation claims by current or former employees:
- Intends to use the information in connection with a transaction involving the extension of credit to or review or collection of an account of the consumer whom the report relates.
- Intends to use the information for employment purposes as authorized under the FCRA.
- Intends to use the information in connection with the underwriting of insurance involving the consumer as authorized under the FCRA.
- Intends to use the information in connection with a determination of the consumer’s eligibility for a license or other benefit granted by a governmental entity required by law to consider an applicant’s financial responsibility or status.
- Has a legitimate business need for the information in connection with a business transaction involving the consumer.
- Intends to use the information for any purpose authorized under the FCRA.
