['Recruiting and hiring']
['Negligent Hiring / Retention']
06/13/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Texas, an employer/former employer may disclose to a prospective employer, upon request of the prospective employer or employee/former employee, information about employee/former employee job performance, unless he/she discloses knowingly false information or discloses the information with malicious intent or reckless disregard. Employers may not disclose certain protected information about the conduct of licensed nurses.
Publishing a blacklist or conspiring or contriving to prevent a discharged employee from obtaining employment is a crime.
Texas Workforce Commission sources say that Vernon’s Texas Civil Statute Article 5196, Discrimination, while still Texas Law, is unenforceable because, according to a Supreme Court case, it violates an employer’s right to remain silent.
Arrest record inquiries
Both the EEOC and Texas have no laws or regulations specifically prohibiting arrest record inquiries. In Texas, applicants whose records have been sealed or expunged may deny the occurrence of an arrest. Also, residential dwelling projects (homes, condominiums, apartment buildings, duplexes, hotels, motels, inns, bed and breakfasts, and similar facilities) may ask employment applicants about their criminal histories.
However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and Texas have no laws or regulations specifically prohibiting conviction record inquiries. In Texas, applicants whose records have been sealed may deny the occurrence of a conviction. Also, residential dwelling projects (homes, condominiums, apartment buildings, duplexes, hotels, motels, inns, bed and breakfasts, and similar facilities) may ask employment applicants about their criminal histories.
However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Texas Commission on Human Rights
Texas Department of Public Safety
Texas Department of Criminal Justice
Conviction record inquiries
Texas Commission on Human Rights
Texas Department of Public Safety
Regulations
Employer immunity from disclosure claims
Texas Labor Code, Title 3, Chapter 103, Disclosure by employer of information regarding certain employees or former employees
Texas Labor Code, Title 2, Chapter 52, Subchapter D, §52.031, Blacklisting offense; penalty
Vernon’s Texas Civil Statute, Title 83, Chapter 12, Article §5196, Discrimination
Arrest Record Inquiries
Texas Family Code, Title 3, Chapter 58, Subchapter A, §58.003, Sealing of records
Texas Code of Criminal Procedure, Title 1, Chapter 55, Article §55.01, Right to expunction
Texas Health & Safety Code, Title 9, Subtitle A, Chapter 765, Criminal history record information checks of employees of residential dwelling projects
Texas Government Code, Title 4, Subchapter F, Chapter 411, §411.118, Access to criminal history record information: employer at residential dwelling project
Conviction Record Inquiries
Texas Family Code, Title 3, Chapter 58, Subchapter A, §58.003, Sealing of records
Texas Health & Safety Code, Title 9, Subtitle A, Chapter 765, Criminal history record information checks of employees of residential dwelling projects
Texas Government Code, Title 4, Subchapter F, Chapter 411, §411.118, Access to criminal history record information: employer at residential dwelling project
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.