Criminal Background Termination

[maryandmichaelb]

i live in texas, and recently my employer found out i have an arrest for a 2nd degree felony for which i was not convicted, but served deferred adjudication probation. is my employer able to terminate me due to this? i have worked for almost 2 years and am highly respected by peers and have an impeccable work history with this employer.

 

[cbg]

If there was a question on the application asking about arrests and you did not answer truthfully, then you can be terminated for falsifiying your application. Otherwise, probably not.

 

[ChumKui]

i live in texas, and recently my employer found out i have an arrest for a 2nd degree felony for which i was not convicted, but served deferred adjudication probation. is my employer able to terminate me due to this? i have worked for almost 2 years and am highly respected by peers and have an impeccable work history with this employer.

Texas' employment is "At-Will"

 

[cbg]

That's true. All states except Montana are at-will. However, even in an at-will state the employer has a few restrictions with regards to what they can and cannot fire someone for. It's not unrestricted. In general, with a few exceptions, an employee cannot be terminated because of an arrest. For a conviction, yes, depending on circumstances. And definitely because of a falsification of their application. But not because of an arrest.

 

[ChumKui]

That's interesting. I'd really like to see documentation showing that. In your opinion, would you consider deferred adjudication a conviction?

 

[cbg]

In my layperson's opinion, deferred adjudication is not a conviction. Deferred means it hasn't occurred yet.

As far as the documentation on arrests goes, the EEOC Guide to Pre-Employment Inquiries states that inquiry about or use of arrest records to disqualify job applicants is prohibited. It's not a difficult step from there to judging that termination of employment because of an arrest would also be prohibited.

Texas has no statutory guidelines on the subject.

 

[ChumKui]

That's interesting information to hear. So, if a person was asked if they have ever been convicted of a misdemeanor and/or felony and that person had deferred adjudication, would they enter "no"?

If you know of any legal documents that might support this, that would be great too.

 

[tito7606]

Deferred adjudication

Texas

This gets really confusing.

If, as cbg states, deferred means it hasn't happened yet...how would one answer the question: Have you ever been convicted of misdemeanor/felony on an employment application?

 

[ChumKui]

See my post above yours

 

[Beth3]

Tito, convicted means convicted. If an individual has been CONVICTED of a crime and that question is asked on an application form (nearly all do), the responder had better answer truthfully or risk being disqualfied for employment or discharged at a later date for lying on their application. That is a different issue entirely than whether the employer can or would use the actual conviction to rule out a candidate from consideration for employment.

The reason the EEOC has ruled that using arrest records to bar employment is prohibited is because it has an adverse impact on some minority groups. As a percentage of the population, higher numbers of blacks and hispanics have arrest records. Plus, anybody can be arrested. Being convicted of a crime is a whole 'nother thing.

As Texas has no statutory requirement on arrest/conviction history, then I think the original poster would have a very difficult time demonstrating his termination was illegal unless he or she could show that the underlying issue was their race or that the employer's policy has a disparate impact on minorities.