Background Checks in Texas; What Can Employers See? A Houston Criminal Lawyer Chimes In.

An increasingly important point with employers are background checks on prospective employees.  Not only can employers interested in credit related information but they are also interested in criminal background information.  There is a ton of information on the internet regarding background checks in Texas, and unfortunately there is also a ton of misinformation there as well.  The purpose of today's blog post is to clarify some of the Texas rules regarding Texas employer background checks, and what employers can legally see.  

The Purpose of a Background Check

Usually employers with the power to hire and fire have a large stake in their decision.  Not only do they have a responsibility to do what is best for the company, or face retribution by their superiors and a guilty conscience, but they must also protect the business and want to hire someone who is responsible and trustworthy.  If you were in an employer's shoes, would you hire an employee who will be working around kids and who has a record for committing a sexual assault against a child or someone who doesn't?  If you owned a store, would you rather hire someone with a long record full of theft convictions or one without?  Another good reason for employee background checks are the responsibility that an employer can face if something goes wrong as a result of hiring a certain employee.  For example, if a truck driving company hires someone who has a record of driving recklessly then the truck driver subsequently causes damage on the job as a result of reckless driving then it is possible that the truck driving company could be deemed to have been negligent in hiring the driver and could be held liable for damages. 

Although hiring employees that are less likely to harm a business and the avoidance of potential damages down the line as a result of an employee are good reasons for running employee background checks, not all people with adverse events or deeds on their record make bad employees, and unchecked criminal background checks can create a virtual brick wall in obtaining employment for certain people, hindering their ability to provide for themselves and their families.  For these reasons and others, there are legal limitations on how Texas employers can use background checks. 

Texas Rules Regarding Background Checks

In general, when an employer in Texas uses a credit reporting agency to conduct the background check then they can only go back seven years for a criminal background check, unless the annual salary reaches $75,000.  In that case, they can go back as far as when the prospective employee was eighteen.  Also, it is noteworthy that convictions when a person was under eighteen are not to be used by employers in a hiring decision even if they are found.  In many cases, the are never found.  There are exceptions to this general rule and the seven year rule is not carved in stone.

Exceptions to the Rule

If you are applying for a job that involves residential delivery, such as a mail/package carrier, or that provides in home services, such as a plumber or electrician etc., (there are many different types of jobs that fall into this category and they are not all listed here), then an employer is required to conduct a check for certain felonies in the last twenty years and misdemeanors in the last ten years.  This includes convictions for crimes involving family violence, crimes against property, and public indecency, even if the case was disposed with deferred adjudication.  The employer is not required to do this if they can show that a state occupational licensing agency has already conducted a background check for the same purpose, and the prospective employee is licensed by that agency.

When the Seven Year Rule Doesn't Apply

The seven year rule only applies when a prospective employer hires an outside consumer reporting agency to conduct the background check.  If an employer does there own background check then they can go as far back as they want, due to the difficulty in performing background checks most employers tend to hire an outside help to perform the task, of course, that is not always the case.  Government agencies are permitted under Texas law to conduct background checks all the way back to when a person was eighteen.

Arrest Records, Deferred Adjudication, and Probation

If you were convicted of a crime, placed on probation, or made a plea of no contest or guilty, then the employer will be able to see that on a background check.  On the other hand, if the case was dismissed without any finding of guilt then it should not show up on the employee background check.  

An arrest record is less likely to show up on a background check, but sometimes they do.  Texas law does not prohibit the use of arrest records in an employment decision, but federal law makes it very difficult to justify doing so, and for this reason many employers don't use arrest records as a basis in a hiring decision.  

Conclusion and How to Get Help

If you have a criminal history and you are concerned about it showing up on an employee background check then you should try to get the offense or offenses expunged or obtain an order of non-disclosure.  This is not always going to be possible, and if you cannot get an expungement or an order of non-disclosure then it is likely that the offenses will show up on the background check. In such a case you should be honest with the employer, explain the situation, and keep trying.   

If you are interested in obtaining an expungement or an order of non-disclosure then the Law Office of Chad Zubi offers a free consultation and you can make an appointment by calling 832-777-8924 or by emailing chadzubilaw@gmail.com.