New Texas Law Limits Liability for Employers Hiring Applicants with Criminal Backgrounds

06/25/2013

Many employers are wary of hiring applicants with criminal records because they fear exposing themselves to potential negligent hiring or negligent supervision claims, but they also have concerns imposed by the EEOC’s aggressive interpretation of Title VII that a blanket rule against hiring persons with criminal convictions is a violation of the law. To address these conflicting concerns, as well as to increase public safety, decrease recidivism and allow job seekers with criminal records to become self-sufficient, Texas Governor Rick Perry signed H.B. 1188 on June 14, 2013. The new law amends the Texas Civil Practices and Remedies Codes so that “a cause of action may not be brought against an employer, general contractor, premises owner, or 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.”

However, H.B. 1188 does not preclude all causes of action for negligent hiring or negligent supervision. Rather, the law includes exceptions allowing a plaintiff to bring a claim if the employer knew or should have known the employee was convicted of one of the following offenses:

  • 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,” taking into consideration the factors listed in Texas Occupations Code sections 53.022 and 53.023(a)1;
  • “An offense listed in Section 3g, Article 41.12” of the Texas Code of Criminal Procedure, which includes, for example, murder, aggravated robbery, and aggravated sexual assault; or
  • A “sexually violent offense.”

Employers may also face liability for negligent hiring and supervision claims “concerning the misuse of funds or property” if, “on the date the employee was hired, the employee had been convicted of a crime that includes fraud or the misuse of funds or property…and it was foreseeable that the position for which the employee was hired would involve discharging a fiduciary responsibility in the management of funds or property.”

H.B. 1188 goes into effect on September 1, 2013, and it will only affect causes of action which accrue after its effective date. While this statute provides some protection from negligent hiring or supervision claims, employers should continue to run background checks to determine whether an applicant is appropriate for a particular job.

For more information, please contact the Haynes and Boone attorney with whom you work or any of the following attorneys in the firm’s Labor and Employment Practice Group:

Matthew T. Deffebach
713.547.2064
matthew.deffebach@haynesboone.com

  Karen Coomer Denney
817.347.6616
karen.denney@haynesboone.com

Dean J. Schaner
713.547.2044
dean.schaner@haynesboone.com

Tamara I. Devitt
949.202.3060
tamara.devitt@haynesboone.com

Felicity A. Fowler
713.547.2072
felicity.fowler@haynesboone.com

Melissa M. Goodman
214.651.5628
melissa.goodman@haynesboone.com

Laura E. O'Donnell
210.978.7421
laura.odonnell@haynesboone.com 

 


____________________
1 While the law is ambiguous concerning what it means to take these factors into consideration, the factors are generally similar to those the EEOC lists in its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 for analyzing whether criminal conduct may be relevant to a particular position. The factors include, among others, the nature and seriousness of the crime, the amount of time that has passed since the criminal activity, and the nature of the job held or sought.

Email Disclaimer