Employers in Texas have the right to conduct criminal, credit, or other types of background checks (e.g., litigation, bankruptcy, education, military history, licensing, etc.) on job applicants, subject to certain restrictions. In fact, to avoid a claim of negligent hiring, employers in Texas should conduct a background check if the employer knows or has a reason to know that a potential employee is incompetent, unfit, or might cause an unreasonable risk of harm while performing his or her job duties. Texas law also requires background checks for applicants in certain industries, including facilities caring for the elderly and disabled, child care agencies, and private school personnel. While there are no laws in Texas limiting the time when a background check can be done, the best practice is to conduct the background check after a tentative offer is made, but prior to official hire.
To properly and legally conduct a credit or criminal background check, employers must give the applicant written notice that a background check will be done. The employer must also get written authorization from the applicant if the credit or criminal background check is to be done through an outside agency or if a search engine is to be used. If an applicant is younger than age 18, it is best to secure written permission from the child’s parent or guardian to conduct a background check.
After receiving the results of the background check, to avoid the risk of an EEOC claim, the employer should only consider the information that is relevant to the job in question, given the nature of any particular offense(s) disclosed in the background check, the nature of the job, and the corresponding level of risk or harm. Arrest records, without evidence of convictions, guilty pleas, or no contest pleas, should never form the basis of an employment decision because of the risk of disparate impact. In Texas, and with certain exceptions, background companies are not permitted to provide criminal histories going back further than seven years unless an employee’s annual salary is expected to be over $75,000. Employers who perform the background searches themselves, internally, are not subject to the same seven-year restriction. However, employers should be very wary of considering more dated records because an offense likely becomes less relevant to the job over time and will be viewed with a skeptical eye by the EEOC in the event of a discrimination claim.
If an applicant is turned down for a position on the basis of contents in a criminal or credit background report, the employer must tell the applicant why they were turned down and must give the applicant a copy of the background check report obtained by the employer. The employer must also notify the applicant of the name and address of the outside service agency that furnished the information.
Autum Flores has substantial experience in a variety of complex civil litigation matters with a particular emphasis on labor and employment, commercial litigation, regulatory, antitrust, and securities