A periodic review of your hiring policies is never a bad idea, especially when it comes to ensuring compliance with the applicable laws. If your business is just starting up a background program, then being informed about and adhering to the following hiring laws is even more crucial. A couple to be aware of are: the seven year rule and limitations on the use of records.
Seven Year Rule
An employer in the state of Texas should stick to the 7 year rule when hiring. This rule restricts an employer using a (CRA) Credit Reporting Agency (all background check providers) is only allowed to check criminal records dating back seven years. There are a couple of exceptions though. When the position the applicant is applying for earns in excess of $75,000 a year, then an employer may look at their criminal record all the way back to when the individual was 18 years old. The same holds true if the applicant is applying for a job in insurance or with a state or local agency. The 7 year rule also does not apply to in-home services and residential delivery companies. See the Texas Civil Practice and Remedies Code regarding this here. And remember to always consult legal counsel for updates and guidance regarding specific case law.
Arrest Records vs Conviction Records
There is often confusion regarding which criminal history records are considered off-limits when hiring. Many people erroneously believe if it’s on the record, even an arrest, then it’s fair game. This is not the case. Remember, both state and federal laws apply. So while some states do not have a law specifically prohibiting the consideration of arrest records, the EEOC (Equal Employment Opportunities Commission) states that use of arrest records may be considered discriminatory, citing that African Americans and Hispanics are disproportionately involved with the criminal justice system compared to the general population. This requirement combined with the fact that individuals are innocent until proven guilty provides a good rule-of-thumb restriction on conviction records when determining who to hire.