Handbook of Operating Procedures 5-1140

Criminal Background Checks

Effective August 01, 2016
Executive Sponsor: Senior Vice President and Chief Financial Officer
Policy Owner: Assoc. Vice President for Human Resources

 

1. Policy Statement

It is the policy of The University of Texas at Austin ("University") to conduct criminal background checks as authorized by federal and state law and The University of Texas System ("UT System") policies. This policy also requires employees and other individuals covered by this policy to report any subsequent criminal convictions, excluding misdemeanor offenses punishable only by a fine, as specified in this policy. (Refer to Sec. VII.I – Self Reporting).
 

2. Reason for Policy

To promote the University's commitment to a safe and secure environment by providing guidance for conducting and using criminal background checks in compliance with federal and state laws and UT System policies.
 

3. Scope & Audience

This policy applies to all University employees, including individuals in positions requiring student status, final applicants to University positions, interns, volunteers, affiliated workers, contingent workers, students in programs with assignments in clinical health care, and in certain circumstances, contractors and their employees.
 

4. Definitions (specific to this policy)

University Affiliate:

an individual who has a relationship with the University outside of traditional employment. A University Affiliate can be paid or unpaid and include but are not limited to affiliate relationships associated with research, visiting scholars, employees of contractors, interns, contingent workers, students in programs with assignments in clinical health care, and volunteers. A more complete listing may be found on the Human Resources website (http://www.utexas.edu/business/erp/hrms/help/UniversityAffiliateTypes.php).

Applicant:

an individual who applies for a full-time or part-time position with the University, including academic and non-academic student titled positions. This definition includes external candidates and current employees of the University who have applied for open positions.

Appropriate:

when used to describe a background check source, "appropriate" means a background check source that involves using a database(s) that is authorized, takes into consideration the nature of the position, information obtained from the U.S. government in connection with the Visa process, and established Human Resources procedure. The source must also include data for permanent, temporary, and educational residences for anyone who has lived outside of the State of Texas since the age of 17.

Criminal Background Check:

the process to seek information about a person collected by a criminal justice agency or vendor which includes criminal convictions and may include "criminal history record information," i.e. 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.

Employee (for purposes of this policy):

includes faculty, classified, administrative and professional, and positions requiring student status.

Frequently:

when used to describe visits to a child-care facility, means present more than two non-continuous visits at a child-care facility in a 30-day period.

Non-continuous visit:

being physically present at a child-care facility for a period of time of less than 24 hours. Multiple or periodic visits to a facility within the same day is one visit.

Professional:

individuals such as doctors, psychologists, and early childhood intervention workers who are at a child-care facility in an official capacity.

Regularly:

volunteering or observing in a child-care facility on a scheduled basis.

Unsupervised access:

a situation in which an individual is permitted to be with children without the presence of a University employee who is a professional caregiver.

Youth Camp:

a program that meets all of these criteria:

• is operated by or on the campus.
• offers recreational, athletic, or educational activities for campers/participants who
  • are not enrolled at the University or employees of the University, and 
  • are minors (under the age of 18); and
• is not a camp required to be licensed by the Texas Department of Family and Protective Services (DFPS).

5. Website (for policy)

https://secure4.compliancebridge.com/utexas/public/getdoc.php?file=5-1140
 

6. Contacts

7. Responsibilities & Procedures
   1. Criminal Background Check Required. The University must obtain criminal background checks, at a minimum, in the following situations.

1. Statutorily Required Criminal Background Check

If state or federal law requires that a position/individual be subject to a criminal background check using a specific source of criminal background check information and/or certain procedures, (e.g., the University's Police Department), the University will comply with such laws. If such laws impose criminal background check requirements that are more extensive or substantially similar, the University will comply with the statute to satisfy the requirements of this policy.

Similarly, the University may rely on a criminal background check conducted by a federal government agency to satisfy the requirements of this policy for an individual on assignment from the federal agency, if the University receives documentation from that federal agency showing that a background check, including a criminal background check with a sex offender registry check, has been conducted.

2. Applicants for Employment

A criminal background check must be conducted on any applicant, internal or external, who is under final consideration for employment with the University, following normal screening and selection processes. This applies to all full-time, part-time, regular, temporary, or student positions. The University may rely on a criminal background check conducted by the University within the past 12 months if there is not a break in service of more than six (6) months and the criminal background check relied on is appropriate for the position sought. For student applicants to a position requiring student status, the University will rely on a criminal background check performed by the University within the past 60 months as long as the student has maintained continuous enrollment during the long semesters, the student is employed in the same job or one with the same criminal background check requirements, and the student is required to report any charges or convictions (including current or upcoming registry as a sex offender), excluding misdemeanor offenses punishable only by fine.

The University must receive an authorization form signed by the applicant before the background check is requested.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used, as appropriate, on applicants for employment; the criminal background check must include a sex offender registration check:

• The Texas Department of Public Safety (DPS) Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Sec. F, below)

3. Current Employees

A criminal background check, including a sex offender registration check, must be conducted on:

1. a current employee if the University has not previously obtained a criminal background check on the employee.
2. a current employee when the president, or his or her designee, determines it is necessary to further the goals of the University.
3. a current employee when he or she is under final consideration for another position within the University. (Refer to VII.A.2 above.)
4. a current employee when he or she moves to another position under a different dean or vice president.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used, as appropriate, on applicants for employment:

• The Texas DPS Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Sec. F, below)

4. University Affiliates As Needed

A criminal background check, including a sex offender registration check, may be needed for University affiliates.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used, as appropriate, for University affiliates:

• The Texas DPS Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Sec. F, below)

5. Without Salary Faculty Appointees

A criminal background check, including a sex offender registration check, must be conducted on individuals prior to their receiving a "without salary appointment" to a position with a faculty academic title authorized under Regents' Rules and Regulations Rule 31001.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used as appropriate:

• The Texas DPS Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Section F, below)

6. Child-Care Facilities and Youth Camps

In addition to fully complying with all applicable federal and state laws relating to criminal background checks, the following provisions apply to all child-care facilities and youth camps operated by, on the property of, or in the facilities of the University.

1. Child-Care Facilities Fingerprint Checks. Child-care facilities must ensure criminal background checks are conducted prior to permitting the individual to work, assist, or be present at the facility and at least every two years thereafter for:

• employees
• final applicants
• professionals such as doctors, psychologists, early childhood intervention workers
• each person 14 years of age or older, other than children in care at the facility, who 1) is counted in child-to-caregiver ratios, or 2) has unsupervised access to children in care at the facility
• interns
• each person 14 years of age or older, other than children in care at the facility, who will regularly or frequently be staying or working at the facility, if 1) the person has lived in
• another state any time during the previous five years, or 2) there is reason to suspect criminal history in another state. The check required under this section applies even if the individual has only supervised access to the children.

• The Texas DPS name-based criminal background check and Federal Bureau of Investigation fingerprint-based criminal background check;
• A Department of Family and Protective Services (DFPS) central registry check;
• A sex offender registration check; and
• An international check for any foreign national who the facility's director has reason to believe lived outside the U.S. after the age of 14 unless the person's visa issuance or renewal occurred after implementation of the U.S. Patriot Act on October 24, 2011. (Reasonable efforts will be used to obtain such check and it need only be conducted initially if the individual has not lived outside the U.S. since last checked.)

2. Child-Care Facilities Name Checks. Child-care facilities must ensure criminal background checks are conducted prior to permitting an individual to work or spend time at the facility and at least every two years thereafter for all people 14 years or older, excluding children in care at the facility, 1) who are not required to have fingerprinting, and 2) who will regularly or frequently be present at the facility while children are in care. This applies to, but is not limited to, volunteers, including parent volunteers, and student observers.

• Texas DPS name-based check
• A DFPS central registry check
• A sex offender registration check
• An international check for any foreign national who the facility's director has reason to believe lived outside the U.S. after the age of 14 unless the person's visa issuance or renewal occurred after implementation of the U.S. Patriot Act on October 24, 2011. (Reasonable efforts will be used to obtain such check and it need only be conducted initially if the individual does not live outside the U.S. since last checked.)
• An appropriate out-of-state check for anyone who has lived outside the state of Texas since the age of 17.

3. Youth camps. Operators of youth camps must ensure all employees and final applicants who will work at the camp, and all volunteers and student observers who will regularly or frequently be at the camp undergo a criminal background check conducted each year. The check must be conducted prior to permitting an individual to work, volunteer, or observe. Further, volunteers and student observers who are not subject to a check must not have unsupervised access to campers.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

The camp will use the following sources in conducting a background check:

• Texas DPS Crime Records Service – Secure or Public Site
• A sex offender registration check
• An appropriate out-of-state check
• An international check for any foreign national who the camp director has reason to believe lived outside the U.S. after the age of 14 unless the person's visa issuance or renewal occurred after implementation of the U.S. Patriot Act on October 24, 2011. (Reasonable efforts will be used to obtain such a check and it need only be conducted initially if the individual does not live outside the U.S. during the year.)

7. Volunteers in Health Care Facilities

A criminal background check, including a sex offender registration check, must be conducted on volunteers who will regularly or frequently be at a University health care facility, including a student health center. This action must be taken prior to permitting such individual to volunteer at the health care facility. Further, any volunteer who has not been subject to a check must not be allowed unsupervised access to patients.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used, as appropriate:

• The Texas DPS Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Sec. F, below)

8. Students in Programs with Assignments in Clinical Health Care Facilities or Involving Patient Care

A criminal background check, including a sex offender registration check, must be conducted on students in an educational program that includes assignment to a clinical health care facility or whose assignment may require work with patients.

To determine the appropriate type of background check, refer to Human Resources reference chart at: http://www.utexas.edu/hr/manager/hiring/background_check.html#ref.

Any or all of the following background check sources may be used, as appropriate:

• The Texas DPS Crime Records Service – Secure or Public Site
• Other public state, national, and international sites
• A private vendor that offers national criminal background check services (See Sec. F, below)

9. Contractors Other Than Child-Care and Youth Camp Contractors for Whom the Above Provisions Apply

A criminal background check must be conducted on individuals or employees of companies or entities contracted by the University, where these individuals or employees will perform duties or services on the University premises. In addition, a criminal background check may be required of contractors' employees, at the sole discretion of the University, taking into account:

• the nature of the services to be provided by the contractor, such as access to University information resources or confidential information,
• the potential of access to currency,
• the potential of access to pharmaceuticals, select agents, or controlled substances,
• whether those employees will have responsibility for care of patients or vulnerable populations.

The University requires the contractor to conduct these criminal background checks. The business contracts administrator at the University and his/her office will be responsible for reviewing proposed contracts and determining if criminal background checks must be required. The University may require contractors to show proof, satisfactory to the University, that the contractors performed the appropriate criminal background check on the contractor's employees.

2. Procedures

1. All job advertisements must include notice of the requirement for a criminal background check.

2. The University will make an offer to applicants on a contingent basis, pending results of a criminal background check conducted prior to the first day of employment.

3. The hiring department must follow established Human Resources procedures for conducting criminal background checks. If the requirements for a particular position are more extensive than the usual process, the department must comply with the more stringent requirements.

4. The hiring department makes the decision to offer employment or promotion after reviewing the criminal history information and consulting with Human Resources and/or the Office of the Executive Vice President and Provost, according to established procedures.

3. No Automatic Disqualification for Criminal Background

1. Except as outlined in C.2 below, an individual with a criminal record will not automatically be disqualified from employment, appointment, or privileges. The University will review cases on an individual basis, taking into consideration the individual's overall criminal history, the amount of time since the offense, and whether the offense is relevant to the duties of the position or to furthering of the mission of the University.

2. The University will not hire, continue to employ, appoint or assign an individual if information is obtained that the individual has been convicted or placed on deferred adjudication for an offense that would require:

1. the individual to register as a sex offender under Chapter 62, Code of Criminal Procedure, which includes, but is not limited to, such offenses as Continuous Sexual Abuse of Young Child, Sexual Assault, Aggravated Sexual Assault, or

2. an offense under the laws of another federal or state law that is equivalent to an offense requiring such registration.

An exception to this may be considered if the hiring/appointing official as appropriate articulates a compelling justification, the associate vice president for human resources and the University chief of police concur, the president concurs and the individual has no higher than a level one (low) risk as determined by the risk assessment screening tool implemented pursuant to Chapter 62, Code of Criminal Procedure. If no such risk level is assigned, then the risk level cannot exceed a low risk as determined by the University's chief of police.

Human Resources will evaluate criminal history search results according to Human Resources' general guidelines for the type of offense, relevance to employment at the University, time passed since the offense and overall criminal history. When there is a potentially disqualifying offense or offenses, the information will be given to the associate vice president for human resources and chief of police for review.

4. Notice Requirement. If the University receives a report indicating an applicant for employment or a current employee has a criminal record that may impact the employment decision, the University will:

• notify the individual that such a report has been received,
• provide the individual with a copy of the report, except as provided by law or DPS policy, and
• notify the individual of the right to challenge the accuracy and completeness of the report by submitting additional information relating to the criminal record describing why it should not affect the employment decision.

5. Opportunity to Respond to Adverse Action

1. External Applicants for Employment and Volunteers. The decision of the University is final and may not be appealed.
2. Current Employees. If the individual is a current employee subject to a criminal background check, employee grievance procedures outlined in the University grievance policy are available to challenge the decision. If the criminal record leads to termination, the applicable policies and procedures for discipline and dismissal of employees will be used.

6. Third-Party Vendor Agency Report. If a third-party vendor credit reporting agency is to conduct criminal record checks, the resulting report is considered a "consumer report" under the Fair Credit Reporting Act (FCRA). The University complies with all applicable FCRA disclosure and notice requirements.

7. Address Discrepancies. The University complies with the Federal Trade Commission regulations, 16 CFR Part 681. If the University becomes aware of an address discrepancy during the course of a criminal background check, the University will follow procedures outlined in "Address Discrepancy Guidelines" located at: http://www.utexas.edu/hr/manager/hiring/background_check.html.

8. Non-Discrimination. The University will not use any information obtained in the course of a criminal background check to discriminate on the basis of race, color, national origin, religion, sex, disability, age, sexual orientation, gender identity, and gender expression.

9. Self-Reporting

1. Applicants for Employment

Applicants must report in writing any arrest, criminal charges or convictions (and whether applicant is registered as a sex offender or will be required to register as a sex offender) occurring after the date of application. The applicant does not need to report misdemeanor offenses punishable only by a fine. If an applicant fails to comply with this provision, the applicant may be disqualified.

2. Current Employees

1. University employees must report to their supervisor in writing, within five business days, any arrest, criminal complaint, information, indictment, no contest plea, guilty plea, or criminal convictions (and whether the employee is registered as a sex offender or will be required to register as a sex offender), excluding misdemeanor offenses punishable only by fine.

2. Department Head Obligation. The University official receiving a self-report as required under this section must provide the information to the associate vice president for human resources, the University's chief of police, and the provost, as appropriate, and consult about the individual's suitability for the position. The University may determine that employment actions may be required, including, but not limited to, reassignment, leave without pay, paid leave, or termination. In the case of any of the events described in sub-paragraph I.2.a above, or any other administrative action which renders an employee unable to perform the essential functions of his or her job, the University may terminate the employee.

3. Falsification or Omission of Criminal Record Information. Subject to the University's standard grievance and disciplinary procedures as applicable, falsification or omission of records or failure to report as required by this policy or law is a violation of policy and will lead to disciplinary action.

3. Affiliates

10. Retention of Criminal Background Check Reports

1. Criminal background check information obtained by Human Resources is kept for six (6) months, after which the information is sent to the University's chief of police for destruction.
2. Departments will not place criminal record information in the applicant's or employee's file.
3. The University will not communicate criminal record information for any unauthorized purpose, or disclose the information to a person who is not entitled to the information.
4. Texas Government Code, Section 411.085 ("Unauthorized Obtaining, Use, Or Disclosure of Criminal History Record Information") makes unauthorized use or disclosure of criminal history information criminal offenses.
5. Departments obtaining more extensive criminal background check information in compliance with statutory requirements will retain and destroy the information pursuant to any guidelines specified in the statute. If the statute has no specific retention and destruction guidance, the department will follow the retention and destruction guidelines specified in this policy.

8. Forms & Tools

HR webpage: How to Request a Background Check

9. Frequently Asked Questions

None
 

10. Related Information

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

Texas Government Code, Section 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

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

The Texas Department of Public Safety (DPS) Crime Records Service Public Site