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References and Background Checks

  1. The average telephone reference call will not yield much usable information - employers are concerned about being sued for giving unfavorable references.

  2. Case in point: Frank B. Hall Company v. Buck, 678 S.W.2d 612 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.), cert. denied, 472 U.S. 1009, 105 S. Ct. 2704 (1985) - terminated employee suspected former employer was bad-mouthing him behind the scenes - ex-employee hired private investigator to pose as a prospective new employer and call the former employer for a reference - investigator tape-recorded the employer making scurrilous and unprovable allegations about the ex-employee's character and honesty - jury decided that was defamation and awarded almost $2,000,000 in total damages to the plaintiff.

    1. Note: under Texas law, it is legal for a person to tape-record a conversation without the knowledge or consent of others, as long as the person doing the recording is participating in the conversation.

  3. All applicants should sign a waiver and release of liability form clearly authorizing prior employers to release any requested information to your company and relieving both the prior employers and your company of all liability in connection with the release and use of the information - see sample form for release of job information.

  4. Whatever information an employer releases in connection with a job reference should be factual, in good faith, and non-inflammatory!

  5. Similarly, it would be a good idea to restrict the release of information to whatever was requested - unless there is a compelling need to do so, try not to volunteer additional things that are not connected to the information requested by the prospective new employer.

  6. Texas law (Texas Labor Code, Chapter 103) gives employers important protections against defamation lawsuits based upon job references, as long as the employer does not knowingly report false information; still, employers should try to report only what can be documented.

  7. Employers have the right to do criminal background checks themselves, but most employers hire a service to do that - be careful, since the Fair Credit Reporting Act requires an employer to give written notice that a credit or background check will be done and to get written authorization from an applicant to do the check if an outside agency will be used (the notice and the authorization can be on the same form) - in addition, if the applicant is turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let them know the name and address of the service that furnished the information.

    1. In-home service and residential delivery companies must perform a complete criminal history background check through DPS or a private vendor on any employees or associates sent by the companies into customers' homes (including attached garages or construction areas next to homes), or else confirm that the persons sent into customers' homes are licensed by an occupational licensing agency that conducted such a criminal history check before issuing the license. The records must show that during the past 20 years for a felony, and the past 10 years for a class A or B misdemeanor, the person has not been convicted of, or sentenced to deferred adjudication for, an offense against a person or a family, an offense against property, or public indecency. A check done in compliance with these requirements entitles the person's employer to a rebuttable presumption that the employer did not act negligently in hiring the person. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004. Recommended: do such checks on anyone who will be going into a person's home, garage, yards, driveways, or any other areas where the employee could come into contact with people at their homes.

  8. With respect to applicants younger than 18, if possible, secure written permission from the child's parent or guardian to conduct background or drug tests.

  9. Unless a law requires such a question, do not ask about arrests, since the EEOC and the courts consider that to have a disparate impact on minorities - a company can ask about convictions and pleas of guilty or no contest. If an EEOC claim is filed, the employer must be prepared to show how the criminal record was relevant to the job in question, i.e., the employer must be able to explain the job-relatedness of the offense - see http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction and http://www.eeoc.gov/policy/docs/arrest_records.html for EEOC's position on this.

    1. Conducting a job-relatedness inquiry involves treating each applicant as an individual - the employer must be able to articulate how it determined, with respect to an individual applicant, in light of the applicant's criminal history, and concerning the job in question, that hiring the person would have involved an unreasonable risk of possible harm to people or property.

  10. In Texas, asking only about "convictions" will not turn up some forms of alternative sentencing - for example, under the law of deferred adjudication, if the person given such a sentence satisfies the terms of probation, no final conviction is entered on their record, and the person can legally claim never to have been "convicted" of that offense - however, they would have pled guilty or no contest to the charge (such a plea is necessary in order to qualify for deferred adjudication), so if it is necessary (job-related) to know about about convictions and guilty or no contest pleas, the question would have to be rephrased - see the discussion directly above about the job-relatedness of an offense. In the case of Kellum v. TWC and Danone Waters of North America, Inc., 188 S.W.3d 411 (Tex.App.-Dallas 2006), the appeals court ruled that a claimant did not commit disqualifying misconduct by indicating that he had not been convicted of a crime, where the application asked only about convictions, and he had been given deferred adjudication.

    1. Sample question about criminal history: "During the past (fill in the number) years, have you been convicted of, or have you pled guilty or no contest to, a felony offense? If yes, please explain in the space below. (Answering "yes" to this question will not automatically bar you from employment unless applicable law requires such action.)"

    2. Try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm - the remoteness of an offense is a factor in the job-relatedness determination noted above

    3. To minimize the risk of an EEOC claim, and to be as fair as possible, try to keep the following in mind:

      1. Prior involvement with the criminal justice system should never be used as a blanket disqualifier unless a statute or relevant agency regulation requires such a result.
      2. Hiring decisions should be based upon individual characteristics, instead of stereotypes.
      3. The best advice for employers in this regard is really to follow the EEOC's guidance on job-relatedness determinations, as explained in this topic and in the last paragraph of the article "Job References and Background Checks" in this book.
      4. In general, there is no substitute for treating people as individuals and, to the extent possible, for taking the time to know more about a person than just what official records might show.

     

  11. If an exclusion based on criminal conduct would have a disparate impact on minorities, EEOC expects the employer to develop a "targeted screen" that takes into account the nature and gravity of the crime, how much time has passed since the crime occurred, and the specific functions of the job in question. Any person excluded by such criteria would then have an opportunity for an individualized assessment to determine whether the criteria as applied are job-related and consistent with business necessity. The individualized assessment would involve notice to the individual that the criminal record may result in him or her not being hired, an opportunity for the applicant to explain why the exclusion should not be applied under his or her particular circumstances, and consideration by the employer of whether the individual's new information justifies an exception to the exclusion and shows that the policy is not job-related and consistent with business necessity in the applicant's specific situation. Detailed commentary on the EEOC standards for criminal history information is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

  12. Be cautious concerning offenses that occurred too far in the past - EEOC's policy statement issued on February 4, 1987 on the use of conviction records in employment decision cites a 1977 court case as authority for requiring employers to take into account "the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977). In addition, a Texas statute, Business and Commerce Code Section 20.05, provides that background check companies may not report criminal history information relating to events that happened more than seven years in the past, unless the applicant is to be paid an annual salary of $75,000 or more, or the applicant will be working for an insurance business.

  13. Never ask an applicant to take a polygraph exam, unless your organization is statutorily required to do so - that would be a violation of the Employee Polygraph Protection Act of 1988, a federal law.

  14. An employer may require an applicant to be responsible for submission of official records, transcripts, certificates, and licenses.

  15. Very important: in order to position your company as well as possible against potential "negligent hiring" claims, document your efforts to verify the work history and other background information given by the applicant (see comment 7(a) above).

  16. Flip side: "negligent referral" - do not ever give a false or misleading reference, even if you think you are insulating yourself from a defamation claim or doing the ex-employee a favor - a Texas employer got hit with a large damage award after giving a false reference on a former employee who had been fired for misconduct.

  17. If you have knowledge that an ex-employee has violent tendencies, it is best to be truthful and factual in job references - report only what you can document or prove with firsthand witnesses.

  18. HR best practice: if possible, do not ask about criminal history until the tentative offer of employment has been made - that will lower the risk of discrimination based on criminal history for the majority of unsuccessful applicants.

 

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