- 4th Quarter 1997 -

This is a short excerpt taken from the actual TWC information letter for 4th Quarter 1997 Click here to read full version.

"CRIMINAL BACKGROUND CHECKS

Many employer inquiries to our office involve the issue of criminal background checks. Due to the fear of negligent hiring and negligent retention, more and more businesses are interested in obtaining criminal history information about their applicants or current employees. The negligent hiring issue centers around a legal theory that holds employers liable for the criminal behavior of their employees. Essentially, negligent hiring begins when an employer hires an applicant without checking out that individual's criminal history. The employee then engages in criminal behavior toward a coworker, customer, or other third party. A subsequent investigation demonstrates that the employee had a criminal history that was similar in nature to behavior they directed toward the third party. The injured party sues the employer, arguing that the injury to them would never have occurred if the employer had inquired about the applicant's criminal past (because such an inquiry would have caused the employer to not hire the applicant).

In the past, it was quite difficult and expensive to obtain criminal history information because the Department of Public Safety (DPS) would not release such data without the express written consent of the applicant. Without that consent, the employer was required to perform a county by county check of criminal records. Since there are more than 250 counties in Texas, this placed considerable administrative and financial burdens on the business community. Fortunately, these problems were reduced this year by the Texas Legislature in House Bill 1176. HB 1176 states that any person is entitled to obtain criminal history information for convictions involving any criminal offense and deferred adjudication information on a person charged with a felony offense. Thus, all criminal convictions and felony offenses resulting in a grant of deferred adjudication can be obtained. A small administrative fee will be charged. The fee is only $1.00 if the request is submitted electronically or by magnetic media. Further information about the law and its requirements can be obtained from the DPS Crime Records Division, which has its headquarters in Austin.

Although it is now easier to obtain criminal record information from applicants and employees, an employer should still exercise some caution in this area. For example, anti-discrimination laws could be used to attack an employer whose use of criminal history information arbitrarily and disproportionately excludes members of protected minority groups from possible employment (disparate impact argument). For this reason, employers would be wise not to use criminal history information as a complete bar to employment. If challenged, employers should be able to demonstrate that the criminal inquiry was job-related and consistent with business necessity. For example, it would be appropriate for an employer to exclude an applicant for a driving position who had a recent DWI or DUI conviction. On the other hand, a prior DWI conviction would probably not be job-related with respect to a clerical position. Employers should also be aware that the Equal Employment Opportunity Commission (EEOC) has taken the position that disparate impact discrimination arguments could also be raised by protected minorities who were excluded from employment on the basis of arrest records. This position is based on the assumption that certain minority groups are arrested in a higher proportion than the general population because of prejudice or discrimination in the criminal justice system. "

On top of that the 7 years law was eliminated by Bill Clinton. Another thing that employers use against Deferred Adjudication is the FCRA which was amended in 1996. However, Congress passed the `Consumer Reporting Employment Clarification Act of 1998' and it was signed into law by the President on November 2, 1998. It specifically, strikes FCRA Section 605(a)(5), thus removing the limitation on the look-back period for criminal conviction histories. There is no more seven years law. This would have been an automatic relief given to people who had deferred adjudication.

Disclaimer:
A lawyer is not providing this information to you; we are not lawyers, if you seek to truly understand the law surrounding a deferred adjudication then please contact a real lawyer. This information reflects the authors' views of the injustice of deferred adjudication in Texas. Click here for a legal understanding of deferred adjudication law from a real lawyers.

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