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.

Asking About Convictions After Conditional Job Offer

That’s why many employers in the Texas Panhandle still ask the question of “have you ever been convicted of a crime other than a traffic violation” at some point in the hiring process. My preference is for you as an employer to ask that only after a conditional job offer is made. I suggest you require the prospective employee to fill out a form asking that broad question about any criminal past. At the same time, use that form to get a list of all names used by the applicant and previous addresses for the last 20 or so years, so that you know all the states in which to check for criminal activity and names to search.  

Verifying Criminal History

Once you have that form completed, what methods can you use to verify whether a prospective employee has a criminal past?

  • You can go through the Texas Department of Public Safety. This works particularly well if you know the prospective employee is a long-time Texas resident, or if you have a business that is subject to the laws about in-home workers (explained above). DPS will provide you with the 10-20 year old records that the in-home workers statute requires if you register your business with them to explain why you need it.
  • You can hire a background checking agency to perform a nationwide criminal background search. Use a service that meets the industry standards established by the Professional Background Screening Association. Make sure that you understand your obligations under the Fair Credit Reporting Act to provide the prospective employee with notice that you are going to do this check and to give the potential new hire an opportunity to respond if any negative history is uncovered. The screening agency that you hire should provide you with the forms and instructions to be FCRA compliant.

Ban the Box Laws

If you are a federal contractor, don’t forget that there is a federal “ban the box” law. Effective December 20, 2021, federal agencies and their civilian or defense contractors became subject to “ban the box” restrictions under Senate Bill 387, which states that federal agencies and federal contractors cannot inquire about an applicant’s criminal history information prior to making a conditional offer of employment, unless a law requires an earlier inquiry, or the job involves national security or classified information.

The City of Austin, the state of New Mexico, and many other governments have also banned asking about criminal backgrounds at the application stage. But there is an easy way to comply with all of this patchwork of laws:

Decide on the applicant to whom you are going to make a conditional job offer and then make the offer while telling the prospective employee that they will have to pass a background check, drug test, reference checks and any other preliminary testing before the job offer will become a formal offer of employment.

Even if your business is not subject to one of these ban the box laws, this is much less expensive and less discriminatory than background checking of all or some applicants. You only need to perform a background check on the one that you are planning to hire.

Before Revoking the Job Offer

Finally, to comply with the Equal Employment Opportunity Commission’s concerns about discrimination in the background checking process, once you review the prospective employee’s criminal record, if any, keep documentation proving that you considered the following information before revoking a conditional job offer because of a criminal past:

  • Never make any hiring decisions based on arrests reported in any background check if the arrest did not lead to conviction. Only convictions, deferred adjudications, guilty pleas, and pleas of “no contest” should figure into your decision about whether to hire an applicant with a criminal past.
  • If a criminal conviction record does exist for the applicant, make an individual assessment, considering the nature and severity of that particular applicant’s offense(s) before making a decision.
  • Take into account the timeframe since the conviction(s).
  • Analyze the job duties and any effect a conviction would have for the specific applicant rather than just excluding all persons who have had ever had a felony conviction.