New Law to Limit the Liability of Employers Hiring Individuals with Criminal Records

January 2, 2014

Thorough background checks have traditionally formed a significant part of the hiring process for companies considering new employees.  Hiring an employee with a criminal record poses many challenges for an employer, especially with respect to potential claims of negligent hiring and supervision.  On September 1, 2013, House Bill 1188 became effective and amended Texas Civil Practice and Remedies Code, Section 142.001 with respect to all causes of action accruing after the bill went into effect.  The statute limits the liability of  “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.”

House Bill 1188’s stated purpose is to enhance public safety, raise employment levels, decrease recidivism, and allow job seekers with criminal records to become self-sufficient, law-abiding citizens.  Individuals with a criminal record seeking employment receive less than half as many job offers as persons without records. Thus, the new law is designed to encourage employment of individuals with criminal records who seek to re-integrate themselves with the workforce by diminishing certain obvious concerns for employers.

However, House Bill 1188 is not a complete insulation of liability.  Causes of action still remain against employers under an exception to Section 142.001, when:

  1. the employer, general contractor, premises owner, or other third party knew or should have known of the conviction; and
  2. the employee was convicted of:(A)  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 account certain factors;(B) an offense to which judge-ordered community supervision does not apply, which offenses include murder,  capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and aggravated robbery; or(C)  a sexually violent offense.

While the law does ease concerns about hiring individuals with criminal records, employers should continue to perform extensive background checks on and vet workers to ensure they are suited to the specified job.