Monthly Archives: August 2022

Employer’s Background Checking Obligations

As most local employers know, hiring is hard right now. There are very few applicants and some of those who apply disappear during the hiring process by missing an interview or ghosting your emails and calls.

But don’t let the difficulty of filling an open position tempt you to skip important steps in the hiring process, particularly criminal background checks.

Knowing if your potential employee has a criminal background can prevent many problems down the road. And for some employers in Texas, it is actually required by law. For example, childcare workers must be checked for criminal pasts.

In-Home Service and Residential Delivery Employee Background Checking

But the requirement that gets ignored too often is a Texas employer’s obligation to screen any employee who will be going into residences or into residential garages, outbuildings, etc. So if you operate a furniture store that delivers to customers’ homes, if your employees access houses to repair air conditioners, electrical, appliances or plumbing, if you provide home health services, if you remodel homes, or if your company performs any other jobs in customers’ residences, your business is required to obtain a background check on every employee who will perform those residential services.

Here is the Texas Workforce Commission’s explanation and recommendation:

In-home service and residential delivery companies must perform a complete criminal history background check through DPS or a private vendor on any employees or associates sent by the companies into customers’ homes (including attached garages or construction areas next to homes), or else confirm that the persons sent into customers’ homes are licensed by an occupational licensing agency that conducted such a criminal history check before issuing the license. The records must show that during the past 20 years for a felony, and the past 10 years for a class A or B misdemeanor, the person has not been convicted of, or sentenced to deferred adjudication for, an offense against a person or a family, an offense against property, or public indecency. A check done in compliance with these requirements entitles the person’s employer to a rebuttable presumption that the employer did not act negligently in hiring the person. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004Recommended: do such checks on anyone who will be going into a person’s home, garage, yards, driveways, or any other areas where the employee could come into contact with people at their homes.

Note that this law requires that you look at crimes committed in the last 10-20 years, while both federal and Texas law prohibit commercial background screening services reporting a criminal past if the date of disposition, release, or parole predates the consumer report by more than seven years. Tex. Bus. & Comm. Code §20.05(a)(4). So you could technically check a background using a commercial service and still not discover that your applicant assaulted someone 15 years ago, even if your business is required to check 20 years of felony records for residential repairpersons.

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