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12.1.1 Purpose

The Ãå±±ÂÖ¼é of Texas at El Paso is committed to promoting a safe and secure environment. To that end, this policy sets forth requirements for criminal background checks.

12.2.1 Statutorily Required Criminal Background Check. Where 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, the Ãå±±ÂÖ¼é will comply with such laws. To the extent such laws impose criminal background check requirements that are more extensive or substantially similar, the Ãå±±ÂÖ¼é may rely on compliance with the statute to satisfy the requirements of this policy.

Similarly, the Ãå±±ÂÖ¼é may rely on the criminal background check conducted by a federal government agency to satisfy the requirements of this policy for an individual on assignment from a federal agency, if the Ãå±±ÂÖ¼é receives documentation from that federal agency showing that the federal agency conducted a background check, including a criminal background check with a sex offender registry check.

12.2.2 Applicants for Employment. A criminal background check will be conducted on any applicant, internal or external, who is under final consideration, following the normal screening and selection processes, for employment whether for a full-time, part-time, regular, temporary or student position of employment with the Ãå±±ÂÖ¼é. The Ãå±±ÂÖ¼é may rely on a criminal background check conducted at the Ãå±±ÂÖ¼é within the past twelve (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. The authorization form may be found on the Human Resources website under the HR Forms section. For student applicants to a position requiring student status, the Ãå±±ÂÖ¼é may rely on a criminal background check performed at the Ãå±±ÂÖ¼é within the past sixty (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 Ãå±±ÂÖ¼é will obtain an authorization form signed by the applicant before the Ãå±±ÂÖ¼é requests the check. The form must conform to applicable State and Federal law.

1. Sources of criminal background check for applicants for employment. Any or all of the following background check sources may be used, as appropriate:
   1. The Texas Department of Public Safety (DPS) Crime Records Service – Secure and/or Public Site;
   2. A private vendor that offers national criminal background check services; or
   3. Other state, national, and international sites.

The criminal background check must include a sex offender registration check.

12.2.3 Current Employees. A criminal background check will be conducted on a current employee:

1. who is under consideration for a promotion to a position that requires a criminal background check based on the Ãå±±ÂÖ¼é’s policy; or
2. for whom the Ãå±±ÂÖ¼é has not previously obtained a criminal background check; or
3. for whom, at the discretion of the President, or the President’s designee, determines that obtaining such information serves an official or business purpose to further the goals of the Ãå±±ÂÖ¼é.

1. Sources of criminal background check for current employees. Any or all of the following background check sources may be used, as appropriate:
   1. The Texas Department of Public Safety (DPS) Crime Records Service – Public Site;
   2. Other public state, national, and international sites; or
   3. A private vendor that offers national criminal background check services.

The criminal background check must include a sex offender registration check.

12.2.4 Contractors. A criminal background check will be conducted on individuals or employees of companies or entities contracted by the Ãå±±ÂÖ¼é, where these individuals or employees will perform duties or services on the Ãå±±ÂÖ¼é premises. The Ãå±±ÂÖ¼é will require the contractor to conduct the criminal background check for their employees who work on Ãå±±ÂÖ¼é property. In addition, a criminal background check may be required of contractors’ employees, at the sole discretion of the Ãå±±ÂÖ¼é, taking into account the nature of the services to be provided by the contractor (i.e. access to university information resources; access to confidential information; access to currency; access to pharmaceuticals, select agents or controlled substances; responsibility for care of patients or vulnerable populations). The criminal background check must include a sex offender registration check.

12.2.5 Without Salary Faculty Appointees. A criminal background check will 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.

1. Sources of criminal background check for without salary faculty appointees. Any or all of the following background check sources may be used, as appropriate:
   1. The Texas Department of Public Safety (DPS) Crime Records Service – Public Site;
   2. Other public state, national, and international sites; or
   3. A private vendor that offers national criminal background check services.

The criminal background check must include a sex offender registration check.

12.2.6 Child-Care Centers. In addition to fully complying with all applicable state and federal laws relating to criminal background checks, the following provisions apply to all child-care centers operated by, on the property of, or in the facilities of the Ãå±±ÂÖ¼é.

12.2.7 Youth Camps. In addition to fully complying with all applicable state and federal laws relating to criminal background checks, the following provisions apply to all youth camps operated by, on the property of, or in the facilities of the Ãå±±ÂÖ¼é. A criminal background check will be conducted each year, for 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. The check must be conducted prior to permitting an individual to work, volunteer or be present at the camp. Volunteers and students observers who are subject to the check must not have unsupervised access to campers.

1. Sources for criminal background information for youth camp employees, final applicants, volunteers and student observers. The following criminal background check sources may to be used, as appropriate:
   1. The Texas Department of Public Safety (DPS) Crime Records Service Secure or Public Site check;
   2. A sex offender registration check;
   3. An appropriate out-of-state check; and
   4. An international check for any foreign national who the Director of the Camp has reason to believe lived outside the United States 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 United States during the year.

12.2.8 Volunteers in Health Care Facilities. A criminal background check will be conducted on volunteers, who will regularly or frequently be a volunteer in Ãå±±ÂÖ¼é health care facilities, including a student health center. Such check will be conducting prior to permitting the individual to volunteer. Any volunteer who has not been subject to a check must not be allowed unsupervised access to patients.

1. Sources of criminal background information for Volunteers in Health Care Facilities. Any or all of the following background check sources may be used:
   1. The Texas Department of Public Safety (DPS) Crime Records Service Secure or Public Site check;
   2. Other public state, national, and international sites; and
   3. A private vendor that offers national criminal background check services.

The criminal background check must include a sex offender registration check.

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

12.2.10 Unless otherwise specified in this chapter, the criminal background information should be obtained from sources that would include such information for states where the applicant has resided and/or been employed during the period of no less than the previous seven (7) years.

12.3.1 Applicants. The hiring official will be responsible for requesting that an applicant (internal or external) who is the finalist complete the Criminal Background Check Form. The hiring official will forward the completed and signed form to the Office of Human Resources (HR). An applicant who refuses to complete, sign, and submit the form will be removed from further consideration for the position.

12.3.2 Current Employees. Human Resources will be responsible for obtaining a criminal background check on a current employee (not otherwise an internal applicant). Human Resources may request, but is not required to do so, that the current employee complete the Criminal Background Check Form. If a current employee refuses to complete, sign and submit the Criminal Background Check Form in response to a request made in accordance with this policy, appropriate action, in accordance with Ãå±±ÂÖ¼é policies, may be taken including reassignment, discipline or discharge.

12.3.3 Only HRS is authorized to initiate requests for criminal background check information. Any criminal background information received by the Ãå±±ÂÖ¼é from the Texas Department of Public Safety and/or a designated third party vendor authorized to conduct the criminal background check will be reviewed, and analyzed by the Ãå±±ÂÖ¼é Police Department. The Ãå±±ÂÖ¼é Police Department will notify HRS of the results of the investigation, and HRS will, in turn, notify the hiring official of the results.

12.4.1 Criminal background check information will be used only to evaluate applicants for employment as stated in this policy, and shall in no way be used to discriminate on the basis of race, color, national origin, religion, sex, disability, sexual orientation, or age. Criminal record information obtained pursuant to this policy will be regarded as confidential as required by law and will not be made part of the applicant’s file or the employee’s personnel file when prohibited by law or communicated to any unauthorized person. Under Texas Government Code § 411.085, the unauthorized release of criminal background information is a criminal offense and, consequently, the institution should seek legal advice with respect to any requested release of such information.

12.4.2 Notice Requirement. When HRS receives a report indicating that an applicant for employment or a current employee has a criminal record, HRS 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 with the agency that provided the report and to submit additional information relating to the criminal record and why it should not affect an employment decision.

12.5.1 If circumstances require that an offer be made before the completion of an investigation, the offer must be in writing and contain the following statement: “This offer is contingent on the completion of a satisfactory criminal background investigation.” The individual to whom the position is offered may not begin work until the requirements of this chapter have been met.

12.5.2 Notice Requirement. If HRS advises the hiring official that the results of the criminal background check indicate that the applicant may be unacceptable for the position being filled or for continued employment, HRS will provide an applicant with a copy of the report upon which this advice is based, except as provided by law or DPS policy, and notify the individual of the right to challenge the accuracy and completeness of the report and to submit additional information relating to the criminal record and why it should not affect an employment decision. A hiring official may not extend an offer to the applicant that HRS has advised may be unacceptable.

12.5.3 Should a criminal background investigation indicate that a current employee may be unsuitable for continued employment, HRS will recommend to the division Vice President, or their respective designee, that appropriate action, including termination of employment, be taken. HRS will provide the employee with a copy of the report upon which this advice is based, except as provided by law or DPS policy, and notify the individual of the right to challenge the accuracy and completeness of the report and to submit additional information relating to the criminal record and why it should not affect an employment decision.

12.5.4 No Automatic Disqualification. Except as outlined in section 12.5.4.1 below, the Ãå±±ÂÖ¼é does not automatically disqualify all applicants or current employees with a criminal background from employment or continued employment, appointment or privileges. In the event the investigation reveals a criminal background, the hiring official and/or the divisional Vice President when a current employee, must consult with the Office of Human Resources in these circumstances and 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.

The ultimate responsibility of the decision to hire or reject an applicant or continue employment of a current employee will rest with the hiring official and the divisional Vice President, after consulting with the Office of Human Resources.

12.6.1 External Applicants for Employment and Volunteers. The decision of the institution is final and may not be appealed.

12.6.2 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 procedures will be used.

12.6.3 Use of Private Vendors. If the Ãå±±ÂÖ¼é elects to use a third-party vendor credit reporting agency to conduct criminal record checks, the resulting report is considered a “consumer report” under the Fair Credit Reporting Act (FCRA) and the Ãå±±ÂÖ¼é must comply with all applicable FCRA disclosure and notice requirements.

12.7.1 Applicants for Employment. Applicants must report in writing any charges or convictions (and whether registered as a sex offender or will be required to register as a sex offender), excluding misdemeanor offenses punishable only by fine, occurring after the date of application.

12.7.2 Current Employees. Employees must report to their supervisor in writing, within five business days, any criminal complaint, information, indictment, no contest plea, guilty plea or criminal convictions, (and whether registered as a sex offender or will be required to register as a sex offender) excluding misdemeanor offenses punishable only by fine. Subject to standard grievance and disciplinary procedures as applicable, failure to report is a violation of policy and may lead to disciplinary action as appropriate.

12.7.3 Department Head Obligation. The Ãå±±ÂÖ¼é official receiving a self report as required under this section must provide the information to HRS and the Ãå±±ÂÖ¼é’s Chief of Police and consult regarding the individual’s suitability for the position.

12.7.4 Falsification or Omission of Criminal Record Information. Subject to 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 Ãå±±ÂÖ¼é policy and shall lead to disciplinary action.

12.8.1 The hiring official has the following responsibilities:

1. to ensure that the appropriate criminal background check is completed before a job offer is extended, unless the offer is made contingent on the completion of a satisfactory investigation;
2. to remove from consideration for employment any applicant whose criminal background information proves to be unacceptable, given the nature and responsibilities of the position and based on a case-by-case analysis. This decision must be made upon consultation with the Office of Human Resources, and the divisional Vice President.

12.8.2 The Ãå±±ÂÖ¼é Police Department has the following responsibilities:

1. to review and analyze criminal background information obtained by Human Resources from the Texas DPS Crime Record Service sites (secure or Public), other state, national or international sites, or a designated third-party vendor authorized to conduct the criminal background check in compliance with applicable law;
2. to communicate the review and analysis of the information to HRS;
3. subject to applicable state and federal law, to retain in a secure place the criminal background check information and, at the expiration of 180 days after the date that the investigating official obtained the criminal background check information, to destroy that documentation. After the expiration of the probationary term of the individual’s employment, the Chief of Police, or his/her designee shall destroy all criminal background information that UTEP has obtained about the individual. If the position is one that does not have a probationary period, then the Chief of Police, or his/her designee shall destroy the information 180 days after the Ãå±±ÂÖ¼é obtains it.

12.8.3 Criminal Background Check Records shall be handled and retained in compliance with applicable State and Federal Laws.

12.8.4 The Office of Human Resources has the following responsibilities:

1. to enter the appropriate data from an applicant’s criminal background check form into the Texas Department of Public Safety database and/or a designated third-party vendor database, as applicable;
2. to assist and educate hiring officials on their responsibilities and liabilities with respect to criminal background investigations and the information contained in such investigation reports; and
3. to monitor compliance with requirements of this policy and procedure and to monitor changes in the law applicable to the subject of this policy.

12.9.1 Appropriate means using a database(s) that is authorized, takes into consideration the nature of the position, information obtained from the US government in connection with the Visa process, as well as one that includes data for permanent, temporary and educational residences for anyone who has lived outside the State of Texas since the age of 17.

12.9.2 Frequently present means more than two non-continuous visits at the center in a 30-day period.

12.9.3 Human Resources (HR) means the Ãå±±ÂÖ¼é’s Office of Human Resources to include the Associate Vice President, Director or other HRS designated official with responsibility for administration of this policy.

12.9.4 Non-continuous visit means being physically present at an operation for a period of time of less than 24 hours. Multiple or periodic visits to an operation within the same day is one visit.

12.9.5 Professional means individuals such as doctors, psychologists, and Early Childhood Intervention workers who are at the child-care operation in an official capacity.

12.9.6 Regularly means on a scheduled basis.

12.9.7 Unsupervised access means the person is allowed to be with children without the presence of a qualified caregiver.

12.9.8 Youth Camp means a program that:

1. is operated by or on the campus;
2. offers recreational, athletic, or educational activities for at least 5 campers who:
   • are not enrolled at the institution;
   • attend or temporarily reside at the camp for all or part of at least four days; and
3. is not a day camp or youth camp required to be licensed by the Department of Family and Protective Services