Is It Legal to Bar an Applicant in Texas for Having a Criminal Record

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

Partner with The Unit Consulting for Compliant Hiring

At The Unit Consulting, we help Texas employers craft compliant background check policies, train hiring managers, and build individualized assessment frameworks that minimize legal risk and align with EEOC and state law. If you need support revising application forms, setting up “fair chance” practices, or making tough screening decisions, we’re here to help. Contact the Award-winning Texas HR outsource firm today to ensure your hiring process is informed, fair, and legally strong.

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