Governor Rick Perry approved Texas H.B. 1188 which amends the Texas Civil Practice and Remedies Code [pdf] to prohibit most causes of action “against an employer, general contractor, premises owner, or other third party solely for negligently hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.”
The legislation was enacted in response to statistics showing that applicants with criminal records were hired less than 50% of the time as compared to applicants without criminal records. Governor Perry wanted to address this concern but at the same time, alleviate employers’ concerns for potential liability of hiring individuals with criminal records.
Note, however, that the statute does not completely rid employers of the need to perform its pre-hiring due diligence. It specifically allows claims relating to the misuse of funds if the applicant had previously been convicted of a similar crime. It also allows claims if the employer “knew or should have known” its employee was convicted of the following:
(1) an offense “that was committed while performing duties substantially similar to those reasonably expected to be performed in the employment, or under conditions substantially similar to those reasonably expected to be encountered in the employment”;
(2) a sexually violent offense; or
(3) certain offenses identified in Article 42.12 of the Texas Code of Criminal Procedure, including but not limited to murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and aggravated robbery.
While Texas employers have a little more leeway when selecting its employees, it still remains good practice for all employers to take care when considering arrest and conviction records in employment decisions. For additional guidance, employers can review the EEOC Enforcement Guidance and Q&A Reference Guide on this topic.