Employer background checks in Texas: what do they show?

Dallas employment attorney for discrimination and FMLAA question I receive to my Texas law firm is what shows up on an employer background check in Texas. Employers are increasingly performing background checks on job applicants in Texas. They look at both credit information and criminal backgrounds. There is considerable confusion about what employers can legally see in a background check in Texas. There is a lot of misinformation on the internet about what shows up in an employment background check. Today’s post addresses the criminal background check in an employment background check in Texas.

Why Texas employers conduct criminal background checks

Employers have two simple reasons they conduct criminal background checks. First, employers want to hire employees they can trust. Between an employee convicted for theft and without a theft conviction, most employers will choose the employee without. After all, the employer doesn’t want to make it easier for somebody to steal from it. Second, employers can be liable for hiring an employee with a criminal history who damages property or injures somebody.  (When discovering the history would have avoided hiring the employee.)

A good example of this is a school bus driver who has a criminal record for sexual abuse of children. If the school district fails to conduct a criminal background check and hires the employee it will almost certainly be found negligent in hiring the driver if the driver then sexually abuses children on the bus or at the school.

These legitimate justifications for background checks balance against the opportunity for individuals to start over. The lack of opportunity for employment makes it more likely that a person will return to crime to survive. To balance competing interests, Texas and federal law sets limits on how employers may use criminal background checks.

The rules of criminal background checks in Texas employment background checks

Employment background checks can be a tremendous hurdle in obtaining employment for a substantial number of people. According to the Society for Human Resources Management (SHRM) in 2010, 92% of employers performed a background check on applicants. A 2011 report by the National Employment Law Project proclaimed 65 million Americans possess convictions that appear in a background check.

That means one bad decision can haunt your ability to feed and shelter yourself for a long time. That’s why it’s important to understand how employers use this information in an employment background check in Texas.

The basic rule for employment background checks in Texas

The basic rule for criminal background checks in Texas is an employer using a credit reporting agency may go back seven years in a criminal background check. However, there are several exceptions to this rule. Under Texas law, most applicants cut off at a seven year check unless the salary exceeds $75,000. If you apply for a job earning more than $75,000 annually, your employer can look back until you turned eighteen.

If under age twenty-five you may be concerned that your employer finds a crime as a minor. The criminal records of minors are generally sealed. Employers should not find any criminal convictions before you turned eighteen. If they find out about it they should not be using that information to render an employment decision.

There are some other exceptions to the seven year limit.

For a job for an insurance company, the employer may perform a background check to your eighteenth birthday.

For jobs that include residential delivery services or at-home/in-home services the employer is required to conduct background checks that include twenty years of felony and ten years of misdemeanor history for convictions or deferred adjudication of a crime of family violence, an offense against property (such as theft), or public indecency, unless the employer has proof the applicant is licensed by a state occupational licensing agency that has performed a criminal background check for that purpose. That includes UPS and FedEx drivers, plumbers, electricians, apartment maintenance workers, cable installers, landscapers, and so forth.

Keep in mind that this seven year limitation applies when employers hire outside businesses to perform background checks. These outside businesses are “consumer reporting agencies” subject to federal and state limitations. If the potential employer performs an internal check then it can look back as much as it wants. Few employers outside of government agencies perform their own investigations; but it is important to know that the seven year rule is not absolute.

Additionally, Texas permits government agencies (including both state and local agencies and departments) to look back to your eighteenth birthday. Texas also follows a rule for public jobs to not hire felons; but the federal Equal Employment Opportunity Commission and several federal courts call this rule into question. The Texas Attorney General sued the EEOC in November 2013 to challenge the EEOC position that this rule is illegal. For now, at least, the background check will uncover every conviction as an adult.

But deferred adjudication and background checks…

If you accepted straight probation or deferred adjudication instead of prosecution for an alleged crime, your employer will be able to identify the crime if you were convicted, if you were required to make a guilty plea, or pled no contest. If the charge is dismissed without any admission of guilt then it will not show up on a background check.

This issue is important because when an employer asks about your criminal history on a job application you need to pay attention to the question asked. If the question asks about convictions, guilty pleas or pleas of no contest, then you would have to honestly answer that you have something in your history that is responsive to the question.

This can be an issue where you received deferred adjudication of a criminal charge after pleading no contest and the application question only asked about convictions so you answered “no” that you have not been convicted. The background check discloses the plea. When the background check results appear the employer terminates you because you were dishonest on the application. Texas courts hold this is not dishonesty and you would be eligible for unemployment benefits.

However, understand that the employer could still terminate you for the underlying crime.

Arrests and Texas employment background checks

Ok, so what about when arrested for a crime and no charge occurs?

Arrests without a conviction, guilty plea, or plea of no contest, should never form the basis for an employment decision. The short answer is that an arrest is no proof criminal or offensive conduct occurred (you are innocent until proven guilty). Employers should not uncover arrests on a background check (although sometimes they show up anyway).

No law in Texas specifically prohibits employers from using arrests as a basis for employment decisions but the EEOC asserts federal anti-discrimination law prohibits the use of arrests in employment decisions because such a policy tends to discriminate against ethnic and racial minorities, who are more likely to be arrested than white people.

The anti-discrimination laws do not create an automatic bar against the use of arrests but the standard set by those laws is so high it is nearly impossible to justify the use of arrest records in employment decisions. Therefore, employers tend to limit themselves to actual convictions, guilty pleas and pleas of no contest.

Other limits on employer background checks

In spite of the fairly specific time limitations on criminal background checks, the anti-discrimination laws can also require employers to perform background checks on a shorter period of time (if at all) than the maximum length of time permitted by Texas law. The EEOC takes the position that widespread use of criminal background checks can have a discriminatory impact on minorities that is unrelated to the job or the needs of the employer to protect itself and its customers from an employee with a criminal conviction.

So although an employer may be able to look back at least seven years for criminal activity, an employer concerned about the EEOC investigating discrimination may only perform a background check on the most recent three or four years and look for specific kinds of convictions.

What to do if you have a conviction that will appear on a background check

The first thing I would recommend is talking to an attorney about expungement or an order for non-disclosure. If you cannot succeed in expunging the arrest or obtaining an order of non-disclosure then there is little else available. The only thing you can really do is apply for jobs and be honest about what happened. Keep applying until you find a job that either won’t catch it or accepts your explanation. Talk to a Texas expunction lawyer about your ability to seal your criminal history.

If you believe an employer uses background checks to exclude certain ethnic or racial groups from employment then you can file a charge of discrimination with the EEOC (or TWC); but the probability that the EEOC will put you in that job or provide any other remedy is extremely low. However, filing a charge of discrimination is free. If you really believe there is discrimination it is worth filing the charge. However, you should talk to employment lawyers in Texas before filing a charge.

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