Handbook of Operating Procedures > Series 400 Budget, Finance and Operations > 4.15.2 Criminal Background Check

4.15.2 Criminal Background Check

A. Purpose

The University is committed to promoting the safety and security of personnel and University property consistent with the requirements of the law. To that end, it is the policy of the University to require that criminal background checks be performed for employment, for volunteers and interns, for faculty who are being re-credentialed, for students and for contractor employees or individuals who are assigned to perform work on University property or premises. 

B. Authority/Persons Affected

Texas Education Code Section 51.215 – Access to Police Records of Employment Applicants

Texas Government Code Section 411.081 et seq. – Criminal History Clearinghouse

Texas Government Code Section 411.094 – Access to Criminal History Record Information: Institution of Higher Education

Texas Government Code Section 411.135 – Access to Certain Information by Public

University Internal Procedure for Processing Criminal History and Background Checks

Fair Credit Reporting Act 15 U.S.C. §1681 et. seq.

Texas Human Resources Code - Chapter 42. Regulation of Child Care Services

Texas Administrative Code – Chapter 745 Department of Family and Protective Services, Licensing

Texas Health and Safety Code – Chapter 141 – Youth Camps

Persons Affect: All employees, volunteers, interns, faculty who are being re-credentialed, students and contractor employees or individuals who are assigned to perform work on the property or premises of The University of Texas at Tyler and the University of Texas Health Science Center at Tyler (collectively, the “University”).

C. Definitions

Applicant - an individual who applies for a position of employment with the University, whether the individual is an outside candidate or a current employee.

Criminal Conviction Record Information - public information maintained by the Department of Public Safety, as provided in Texas Government Code Section 411.135.

Criminal History Record Information - information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, information, and other formal criminal charges and their dispositions, as more fully described in Texas Government Code Section 411.082.

National Criminal History Record Check (NCHRC) - a criminal history record check obtained from both the Texas Department of Public Safety and the Federal Bureau of Investigation based on fingerprint identification information, or a criminal record check obtained from a private vendor based on national criminal records.

Position - both full-time and part-time positions, whether the position is filled or to be filled by a regular or a temporary worker or requires student status as a condition of holding the position, but not including a position filled by a temporary worker provided by a temporary employment agency contractor, for which the contractor is responsible for conducting the criminal background check.

Select Agent – This term has the meaning assigned in 18 U.S.C. 175b as that section may be amended from time to time

Controlled Substance - This term has the meaning assigned in Texas Health and Safety Code 481.002 as that section may be amended from time to time..

D. Policy

1. Criminal Background Check Required. The University requires that a criminal background check be obtained on:
   1. Applicants for Regular Employment. A background check must be conducted on any applicant, internal or external, who is under final consideration, following normal screening and selection processes, for any regular (employed to work for a period of four and one-half (4.5) consecutive months or longer) full-time or part-time position of employment with the University. Any or all of the following background check sources may be used, as appropriate, on applicants for employment:
      1. The Texas Department of Public Safety (TxDPS) Crime Records Service – Secure Site.
      2. A private vendor that offers national criminal background check services.
      3. Other state, national, and international sites.
   2. Current Employees. A background check must be conducted on:
      1. a current employee who is under consideration for a promotion or reclassification;
      2. all current employees, volunteers, and interns if the University has not previously obtained a criminal background check; and
      3. a current employee when the President, or his/her designee, determines it is necessary to further the goals of the University.
   3. Volunteers
   4. Without Salary Faculty Appointees, prior to their receiving a without salary faculty appointment, or a reappointment for individuals who have not been checked before.
   5. Temporary Employees (employed to work less than four and one half (4.5) consecutive months).
   6. Youth Camps (example: Asthma Camp)
      1. Each year, prior to permitting any outside therapist, student observer, employee, or volunteer, regardless of number of visits, hours served, or status, to work at the camp, and anyone else over the age of fourteen (14), other than a camper, who works or spends time at the camp.
      2. Youth Camp Criminal Background checks should include:
         1. Texas Department of Public Safety (DPS) Crime Records Service Secure or Public Site Check;
         2. A sex offender registration check;
         3. An out-of-state check for any such person who has lived outside the State of Texas after the age of fourteen (14); and
         4. An international check for any such person who has lived outside the United States after the age of 14. (Such check need only be conducted initially, if the individual does not live outside the United States during the year.
   7. Students in Programs with Assignments in Clinical Health Care Facilities or Involving Patient Care, and University students in accordance with IHOP Academic Admissions.
   8. Any or all of the following background check sources may be used, as appropriate, for Current Employees, Without Salary Faculty Appointees, Temporary Employees, Volunteers, and Students in Programs with Assignments in Clinical Health Care Facilities:
      1. The TX DPS Crime Records Service Secure or Public Site.
      2. Other public state, national, and international sites.
      3. A private vendor that offers national criminal background check services, subject to compliance with the Fair Credit Reporting Act.
   9. Statutorily Required Criminal Background Check. Where State or federal law requires that a position be subject to a criminal background check using a specific source of criminal background check information and/or certain procedures, the University will comply with such laws.
   10. Contractor Employees/Individuals. The University requires that a criminal background check be performed on individuals or employees of companies or entities contracted by the University, when these individuals or employees will perform duties or services on University property or premises. The University requires that contractors provide the University Police (UP) a Criminal Background Clearance Contractor Certification (see below) and photo identification for each contractor employee/individual prior to the performance of duties and/or services by that person, which information will be reviewed by the UP Chief or his/her designee. A contractor must require that any subcontractors obtain the same criminal background information for their employees/individuals. A contractor will be deemed to comply with this requirement if the contractor obtains the Certification from each subcontractor and provides that Certification to the UP.
2. Conducting a Criminal Background Check for Applicants.
   1. A criminal background check will not be performed until OHR receives and forwards to the UP a completed, signed Criminal Background Check Form (available from OHR). The hiring official is responsible for directing the individual to complete, sign, and deliver the form to OHR. An applicant who fails to complete, sign, and submit the form will be removed from further consideration for the position. In addition, if the applicant is a current employee, such refusal is grounds for disciplinary action.
   2. OHR will send the completed Criminal Background Check Form and, if applicable, a copy of the applicant's employment application to UP.
   3. The criminal background check should include states where the applicant has resided and/or been employed during the period of no less than seven (7) years immediately preceding the date the individual signed the Criminal Background Check Form.
   4. UP will promptly obtain and review the criminal background information and will notify the appropriate OHR representative of the results of the investigation.
   5. UP will conduct the criminal background check before the hiring official makes the employment decision. However, if circumstances require that an offer of employment be made before the completion of the criminal background check, the offer must be in writing and contain a statement that the offer is contingent on the completion of a satisfactory criminal background investigation.
3. Conducting a Criminal Background Check for Current Employees.
   1. The University will utilize the TxDPS Crime Records Service – Public Site and/or other publicly available local, state, or federal criminal record sources to perform these checks to obtain criminal conviction record information and other publicly available information.
   2. OHR will determine a procedure to identify the current University employees for whom a criminal background check has not previously been obtained and provide such information to UP.
   3. OHR may require an employee to complete, sign, and deliver a criminal background check form to OHR. An employee's refusal to comply is grounds for disciplinary action.
   4. UP will promptly obtain and review the criminal background information and will notify the department head and the appropriate OHR representative of a criminal record, if any.
4. No Automatic Disqualification for Criminal Background.  An individual with a criminal record will not automatically be disqualified from employment or promotion. In the event the criminal background check reveals criminal record information, UP will work with OHR and the hiring authority to determine on a case-by-case basis whether the individual is qualified based on factors such as:
   1. specific duties of the position;
   2. number of offenses;
   3. nature of each offense;
   4. length of time intervening between the offense and the employment decision;
   5. employment history;
   6. efforts at rehabilitation; and
   7. accuracy of the information that the individual provided on the employment application.
5. Falsification or Omission of Criminal Record Information. Falsification of an application or omission of criminal record information required to be reported is grounds to reject an applicant or discipline/terminate an employee.
6. Notice Requirement. If the University receives a report indicating that an applicant or a current employee has a criminal record, the individual will be notified, provided with a copy of the report, except as provided by law or DPS policy or procedure, informed of the right to challenge the accuracy and completeness of the report with the agency that provided the report, and informed that he/she has the opportunity to submit additional information relating to the criminal record and why it should not affect an employment decision.
7. Opportunity to Respond. Within five (5) business days following the receipt of the report, the individual may submit additional information to the hiring official/supervisor relating to the criminal record and why it should not affect the employment decision. Before the hiring official/supervisor makes a final employment decision, he/she will review all information provided to him/her with OHR and UP and consult about whether to proceed with an offer or adverse employment action. If either OHR or UP is of the opinion that the results of the criminal background check indicate that the individual may be unacceptable for the position being filled or for continued employment, then the hiring official may not extend an offer to or continue employment of the individual without the prior written approval of the applicable executive officer or his/her designee.
8. External Applicants for Employment, Volunteers, Students, and Contractor Employees/Individuals. The decision of the University is final and may not be appealed.
9. Current Employees. If the individual is a current employee subject to a criminal background check, standard employee grievance procedures are available to challenge the decision. If the criminal record leads to termination, the applicable employee discipline and discharge procedure will be used.
10. Post-Decision Disclosure When Private Vendor Services Used to Conduct Criminal Background Check. If a consumer report has been relied on to deny employment, deny a promotion, reassign, or terminate an employee after the University has taken an adverse action, the individual must be given notice that the action has been taken. The notice must include:
    1. the name, address, and phone number of the credit reporting agency that supplied the report;
    2. a statement that the credit reporting agency that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and
    3. notice of the individual's right to dispute the accuracy or completeness of any information the agency furnished, and his/her right to an additional free consumer report from the agency upon request within sixty (60) days.
11. Self-Reporting.
    1. Applicants for Employment. Applicants must report in writing any criminal complaint, information, indictment, no contest plea, guilty plea, deferred adjudication, or convictions (and whether registered as a sex offender or will be required to register as a sex offender) excluding traffic offenses punishable only by fine, occurring after the date of application within five (5) business days.
    2. Current Employees. University employees are required to report to their department head in writing, within five (5) business days, any criminal complaint, information, indictment, no contest plea, guilty plea, deferred adjudication, or criminal conviction, excluding those for misdemeanor offenses punishable only by fine. Failure to do so is a violation of policy and may lead to disciplinary action as appropriate.
    3. Department Head Obligation. The University department head receiving a self-report as required under this section must provide the information to OHR and UP and consult about the individual's suitability for the position.
12. Retention of Criminal Background Check Records.
    1. Confidential Records. Records obtained from a criminal background check database will be regarded as confidential as required by law and will not be made a part of the applicant's file or the employee's personnel file. The information will be kept by UP in a separate secure file and will not be communicated to any unauthorized person.
    2. Criminal History Record Information. Under Texas Government Code Section 411.085, the unauthorized release of criminal history record information, information obtained from the TxDPS secure site consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, and other formal criminal charges and their dispositions, is a criminal offense and, consequently, University officials in possession of such information shall seek legal advice with respect to any requested release of such information.
13. Destruction of Records Obtained from a Criminal Background Check Database.
    1. UP shall destroy all records obtained from a criminal background check database about the individual six (6) months after it is obtained.
    2. Self-reports of charges or convictions as required by this policy will be maintained with the employee's personnel file in OHR in accordance with the University's records retention schedule.
    3. Other Background Checks. This policy addresses criminal background checks only and does not limit the University's authority to conduct other background checks as permitted by law.
       
        

E. Review

This policy shall be reviewed by the Office Human Resources every five years or as legislation changes.