Day 20

       Some employers, rightly so, are concerned about their legal liability when they hire people with criminal records.  Employers can be held liable for the foreseeable acts of their employees within the scope of their employment.  So employers scan an applicant’s history for indicators of future actions.  Thus, criminal background checks.  However, we know that overextended and blanket prohibition hiring policies not only hurt individual applicants but also decrease the applicant pool, weaken our economy, and threaten public safety.
       Thus, in the 2013 Legislative Session in Texas, lawmakers passed a law that limits the liability of persons who employ persons with criminal records. A cause of action can be brought only if the employee was previously convicted of an offense while “performing duties substantially similar to those reasonably expected to be performed in the employment . . .”  But the statute does not completely eliminate liability if the employer knows or should have known about convictions that are sexually violent or what are commonly called aggravated offenses.  Additionally, the Texas House Committee on Judiciary and Civil Jurisprudence has been tasked with an Interim Charge to:  “Study the potential issues involving civil liability for interacting with ex-offenders. In particular, examine the implications of HB 1188 (83R) and the potential expansion of similar protections to landlords.”  This potential legislation could be another significant step in the direction of de-stigmatizing and removing legal discriminations for people with criminal records.

       And there are additional protections against legal liability if the employers follow the guidance from the EEOC.  In a nutshell, employers should perform an individualized assessment of the applicant, including criminal history if necessary.  A targeted screen must include consideration of at least the following three factors:  the nature and gravity of the offense or conduct; the time that has passed since the time of the offense, conduct, and/or completion of the sentence; and the nature of the job held or sought.  If an employer conducts this targeted screen and individualized assessment and thus will most consistently meet the “job related and consistent with business necessity” defense as laid out by the EEOC.

These protections from legal liability should encourage employers to widen their applicant pool, give people with criminal records a fair chance in the hiring process, and benefit communities in many significant ways. Along with the other benefits to employers listed below, employers must be encouraged to hire people with criminal records, for the sake of their business and their community.  It’s a win-win.

Please share these great benefits and opportunities with your employers or explore them yourself if you have control over the hiring process!

Benefits to Employers Who Hire People with Criminal Records, *see HB 1188 Implementation Guide

  • Under the Work Opportunity Tax Credit, employers can earn a tax credit of between $1,200 and $9,600 for hiring someone who has been convicted of a felony.
  • Under the Federal Bonding Program, employers who hire individuals with criminal records can receive a bond, up to $5,000, that insures the employer against any type of theft, forgery, larceny, or embezzlement.
  • As a result of recent legislation, Texas licensing agencies cannot deny commercial, professional, or occupational licenses to individuals who have convictions for Class C misdemeanors or who have completed successful deferred adjudications, thus easing employer concerns about licensing of possible employees.
  • Also as a result of legislation, employers can no longer be sued for cause merely because they hire an employee who has a criminal history and that individual commits another crime.

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