Texas Background Check Laws
Employers make huge investments in their employees. Therefore, it is in their best interest to thoroughly evaluate applicants to the fullest. Increasingly, this evaluation process may include a background check, to determine if the applicant has a criminal record. This becomes especially important when the candidate will be exposed to sensitive information, high-value assets, or vulnerable populations. But, there are limits to what employers can do. So, what can an employer do to check out prospective employees without violating their rights?
Are Some Employers Required by Law to Perform a Background Check?
Most employers can perform a background check at their own discretion. However, residential delivery companies and in-home services are required by law to perform a complete criminal history background check of prospective employees through the Department of Public Safety (DPS) or a private agency. Examples of this type of worker include cable installers, landscapers, electricians, apartment maintenance workers, etc. There are other specific types of employers that must conduct background checks so you should check with your legal counsel to ensure you are not one.
Background Check Methods
In Texas, as in other states, employers have the right to perform a background check on prospective employees. Background checks can be performed using government-held databases, credit-reporting agencies, the Department of Public Safety (DPS), and other private companies. The applicants may be asked to submit official records, certificates, transcripts, licenses, and other relevant documents. The applicants may not be subjected to polygraph tests.
When a background check is needed, the applicant must be informed of the requirement. The Fair Credit Reporting Act requires employers to give a written notice to the applicant that a background check will be performed.
If an outside agency or an Internet search engine will be used to perform the background check, then the employer must get the applicant’s authorization. The notice and authorization form can be printed on the same page. If the applicant is under 18, then authorization must be obtained from his or her parent(s) or guardian(s).
If the applicant is rejected for employment based on information uncovered, the employer must disclose the reason before taking any adverse action. The rejected candidate must also be given a copy of the background check report at this time, and the name and address of the organization that furnished the report.
How Far Back Can Employers Look When Performing a Background Check?
If the background check is performed internally by the employer, then the search can go back as far as the employer would like. If an outside agency, such as a credit-reporting agency, is used to perform a criminal background check, the employer can only look back seven years. However, there are some exceptions.
- If the job commands a salary of $75,000 a year or more, then the employer can look as far back to when the applicant was 18.
- Residential delivery companies and in-home services are required to check as far back as 20 years. This is to ensure the applicant hasn’t committed a felony in the past 20 years, hasn’t committed a Class A or B misdemeanor in the past 10 years, or hasn’t been convicted of or sentenced to a deferred adjudication for an offense against a person, family or property.
- Federal and state government agencies can perform a background check as far back as the applicant’s 18th birthday. An insurance company can also do the same.
This article is meant to give employers an overview of the law on background checks but should not be considered a comprehensive guide to the law. If you are not familiar with a background check and employment laws, it is wise to consult a skilled employment lawyer. The Texas employment lawyers at Simon Paschal PLLC have many years of experience in assisting businesses with employment law and creating policies on pre-employment background checks. Contact them for a consultation.