Is It Legal to Bar an Applicant in Texas for Having a Criminal Record?
Quick Article Summary
- Texas law permits employers to consider criminal convictions, but restricts using older records for positions paying under $75,000 and allows applicants to deny expunged records.
- Federal EEOC guidance prohibits blanket exclusions based on criminal history and requires individualized assessments to avoid disparate impact claims.
- Employers should follow Fair Credit Reporting Act (FCRA) steps, obtain written consent, provide disclosures before adverse actions, and apply policies consistently and cautiously.
Deciding whether a criminal record legally disqualifies a job applicant involves understanding Texas statutory rules, federal anti-discrimination guidelines, and proper background check procedures. This guide equips Texas employers with a full understanding of current law, risk mitigation strategies, and compliant hiring practices.
Texas Law on Criminal Records and Employment
Under Texas law, private employers can consider criminal convictions when hiring—unless the conviction has been expunged or sealed. Applicants with court-ordered expunctions or nondisclosures may legally deny those records during the hiring process, and employers may not rely on them (Employer Use of Arrest and Conviction Records in Texas).
Texas “Seven-Year Rule”
For positions paying $75,000 or less per year, Texas restricts employers from reporting or relying on convictions older than seven years, except in roles requiring public safety clearance or higher salary thresholds. For jobs paying above that limit or safety-sensitive roles, employers can review criminal history dating back to age eighteen (Employer Use of Arrest and Conviction Records in Texas).
Safety-Sensitive Roles Where 7-Year Criminal Record Limit Doesn’t Apply
Texas law generally prohibits reliance on convictions older than seven years for jobs earning ≤ $75,000/year unless the role is considered safety- or security-sensitive, or the job pays more. In those cases, employers may review criminal conviction history dating back to age 18. Here’s a detailed breakdown:
Transportation & CDL-Based Roles
Any position requiring a Commercial Driver’s License (CDL) or operating commercial motor vehicles falls under this exception. These roles are regulated by the Federal Motor Carrier Safety Administration (FMCSA), making them safety-sensitive under federal guidelines. Employers must comply with drug and alcohol testing standards as well (FMCSA Implementation Guidelines).
Healthcare, Nursing, and Vulnerable Populations
Roles involving direct care of children, elderly persons, or individuals with disabilities—such as nurses, healthcare aides, childcare workers, and certain residential care staff—are considered safety-sensitive, particularly if state or federal regulations require extensive criminal background reviews.
Public Safety & Law Enforcement
Positions including law enforcement officers, school safety staff, security professionals, and other roles with access to firearms, restricted areas, or high-security facilities are treated as safety-sensitive. Conviction reviews can go back to age 18, regardless of salary.
Heavy Equipment and Utilities Operators
Jobs such as heavy equipment operators, linemen, wastewater treatment workers, or others handling hazardous machinery or chemicals qualify as safety-sensitive and permit full-background review.
Roles with Access to Financial or Sensitive Information
Certain finance-related positions—such as employees responsible for payroll, billing, collections, auditing, purchasing, or financial reporting—may fall under security-sensitive categories, especially if they have access to protected financial data or fiduciary duties. Educational institutions in Texas (e.g. Texas A&M System) classify such roles as security-sensitive and permit full criminal history review.
Full Texas “Seven-Year Rule” Exception Summary
Category | Examples of Roles | Background Check Rule |
---|---|---|
Transportation/CDL Drivers | Truck drivers, delivery drivers | Review convictions dating back to age 18 |
Healthcare & Vulnerable Populations | Nurses, childcare staff, residential care workers | No 7‑year limit |
Public Safety & Security | Police officers, school safety, campus security | Full history permissible |
Heavy Machinery/Utilities | Equipment operators, linemen, wastewater handlers | Consider full record history |
Financial/Fiduciary Roles | Payroll, accounting, auditing, billing staff in finance | Treated as security-sensitive—no 7‑year limit |
Federal EEOC Guidance: Avoiding Disparate Impact
The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act, which guards against policies that disproportionately exclude applicants of protected groups—even if policies are neutral on paper.
Neutral Policy with Discriminatory Effect
If a hiring policy causes adverse impact (e.g., disproportionate exclusion of protected racial groups), employers must demonstrate business necessity and perform an individualized assessment considering factors like the nature of the offense, time since conviction, and applicant rehabilitation (Employment Discrimination Against Persons with Criminal Records in the United States). Failing to conduct this assessment can lead to disparate impact claims, even when not intentionally discriminatory (Disparate Impact – Wikipedia).
Proper Use of Background Checks: FCRA Compliance
Texas employers must follow both state and federal rules when ordering and using criminal background checks.
FCRA Requirements
Under the Fair Credit Reporting Act (FCRA), employers must:
- Provide a standalone written notice and obtain written consent before requesting a background check.
- If taking adverse action, furnish the applicant with a copy of the report and a consumer rights summary, and allow time for dispute resolution (Texas Background Checks and FCRA Compliance).
Ensuring Accuracy and Non-Discriminatory Use
Rely on reputable reporting agencies and verify accuracy. Avoid denying employment solely for outdated convictions or arrest-only records. Instead, conduct individualized review and document your justification tied to job duties and risk (Are Criminal Background Checks Discrimination?).
Best Practices for Employers in Texas
Develop a Clear Background Check Policy
Define which positions require screening, timelines for relevant convictions, and the need for individualized assessments. Train HR or hiring managers on consistent application of policies.
Apply Individualized Assessments
Before outright disqualification for criminal history, assess whether the offense is directly related to job duties, consider how much time has passed, and any evidence of rehabilitation or recency.
Comply with FCRA Processes
Obtain written consent, disclose rights, and issue adverse action notices properly. This procedural precision ensures legal compliance and reduces liability.
Document Your Decisions
Maintain records showing individualized determination, justification related to job duties or risk, and consistent application across candidates.
When You Can Lawfully Bar Someone
Yes, Texas and federal laws allow you to legally bar a candidate based on criminal convictions—but with care:
- You may exclude convictions still in the allowable time window (seven years or since eighteen for certain roles).
- You may never rely on expunged or sealed records; those must be treated as nonexistent.
- You must avoid blanket exclusions that disproportionately affect protected groups without individualized review.
Summary Table of Legal Framework
Area | Applicable Laws/Guidance |
---|---|
Conviction Review Limits | Seven-Year Rule for ≤ $75K jobs (Texas law) |
Expungement/Nondisclosure | Applicants may deny expunged records (Texas) |
Discrimination Compliance | EEOC Title VII mandates individualized assessments if criminal policies impact protected groups |
FCRA Compliance | Required notice, consent, and dispute process |
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