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Handbook of Operating Procedures
Chapter 4 - Personnel - General
Publication Date: September 4, 2014
Responsible Executive: VP for Business Affairs


4.30 Criminal Background Checks


I. POLICY STATEMENT


The University of Texas at San Antonio (UTSA) is committed to promoting the safety and security of students, visitors, faculty, and staff, as well as enhancing the security of physical resources.  Consistent with the requirements of law, prudent practices, and The University of Texas System (UT System) policy, UTSA will conduct criminal background investigations for employment and appointments (with or without pay) as outlined in this policy.      


II. RATIONALE


This policy outlines the requirements and guidelines for conducting criminal background checks (CBCs) for certain types of employment decisions and use of service without salary and volunteers at UTSA. This policy is implemented in compliance with UT System Policy 124, Criminal Background Checks (UTS 124).


III. SCOPE


This policy applies to all persons and groups listed in the Procedures section below.


IV. WEBSITE ADDRESS FOR THIS POLICY


http://www.utsa.edu/hop/chapter4/4-30.html


V. RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS


UTSA or UT System Policies or the Board of Regents' Rules & Regulations

  1. UTS124 Criminal Background Checks
  2. UTSA HOP policy 2.34 Faculty Grievance Procedures
  3. UTSA HOP policy 3.04 Grievances of Non-Faculty Employees
  4. UTSA HOP policy 3.03 Discipline and Dismissal of Classified Employees
  5. UTSA HOP policy 2.13 Termination and Nonreappointment of a Faculty Member
  6. UTSA HOP policy 4.09 Student Employees
  7. UTSA HR Criminal Background Check website

Other Policies & Standards

  1. Texas Education Code § 51.215 – Access to Police Records of Employment Applicants
  2. Texas Government Code § 411.081 et seq. – Criminal History Record Information
  3. Texas Government Code § 411.094 – Access to Criminal History Record Information: Higher Education Entities
  4. Texas Government Code § 411.135 – Access to Certain Information by Public
  5. Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

VI. CONTACTS


If you have any questions about HOP policy 4.30, Criminal Background Checks, contact the following office:

Human Resources Department
210-458-4648


VII. DEFINITIONS


Applicant - A person that meets the minimum qualifications and officially applies for an available, posted, or advertised position for employment with UTSA.

Appropriate:  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.

Assignment - An official designation as an employee of UTSA in the Human Resources Management System (HRMS).

Promotion - A change in which an employee moves from his/her current position to another position within UTSA. The new position usually requires more extensive education and/or experience and/or is in a higher salary grade. Generally, such a change requires the higher-level position be formally posted, that the employee applies, and is chosen as the most qualified candidate.

Reclassification - A change in the classification (job title) of a position resulting from a job audit (job analysis) performed by HR Compensation. 

Security Sensitive Position - A position defined by Section 51.215, Texas Education Code:  Security-sensitive positions shall be restricted to employees who handle currency, have access to a computer terminal, have access to a master key, or who work in an area of the institution which has been designated as a security-sensitive area.  A security-sensitive position must be so identified in the job description and advertisement for the position. For the purpose of this policy, all positions at UTSA have been deemed security sensitive by the president of UTSA.

Service Without Salary or Volunteer (Person of Interest) – A person who performs any services for UTSA: (a) without pay, or (b) (i) in conjunction with employment at another institution of higher education, or (ii) another organization affiliated with UTSA.  These individuals have access to UTSA resources, e.g., laboratories, keys, and regular use of computers, in conjunction with their service and are assigned in HRMS.  (Service Without Salary is also a term used for faculty assignments that are not paid by UTSA)

Transfer – A transfer is the movement of a UTSA employee from his/her current position to a different position within UTSA, excluding a move due to a Reclassification or acceptance of a posted position. 

UTSA Affiliated Worker - Individuals who have relationships with UTSA outside of traditional employment. They can be paid or unpaid and may have an affiliated worker position in addition to another position at UTSA. They may be individuals who need access to UTSA services such as the ID center or parking privileges and access to resources such as laboratories, keys, and regular use of computers. An example would be a person that is paid by the Veteran’s Administration to work on campus as a specialist in veteran programs.


VIII. RESPONSIBILITIES


  1. Current Employee/Volunteer/Service Without Salary/UTSA Affiliated Worker
    1. Reads and understand the notice on the CBC form and UTSA and UT System policies regarding CBCs.
    2. When required, completes the CBC form accurately and legibly.
    3. Submits the completed form to the hiring department or Human Resources (HR) as required.
  2. Applicant
    1. Reads and understands the notice on the CBC form and UTSA and UT System policies regarding CBCs.
    2. Completes the CBC form accurately and legibly.
    3. Submits the form to the hiring department or HR as required.
  3. Hiring/Employing or Affiliated Department
    1. Selects the correct CBC form based on employment or service category. The CBC categories can be found on the HR Criminal Background Check website.
    2. Takes reasonable steps to verify the identity of the Applicant, current employee or Volunteer with a federal or state photo identification document.
    3. Requests that the Applicant, Employee, Volunteer, individuals performing Service Without Salary or UTSA Affiliated Worker complete the CBC form accurately and legibly. 
    4. Submits the CBC form to HR with appropriate signatures when required.
    5. Reviews the CBC results provided by the UTSA Police Department (UTSAPD) in order to make an informed decision to allow them to be associated with UTSA in an unpaid status.
  4. Human Resources
    1. Receives CBC request and verifies correct selection of CBC category and completion of form.
    2. Enters information submitted into the CBC portal.
    3. Forwards the CBC forms to UTSAPD.
    4. In conjunction with the UTSAPD, reviews CBC results that are other than acceptable in accordance with UTSAPD Standard Operating General Order 600-04.
    5. Verifies completion of the CBC prior to Assignment approval.
  5. Police Department
    1. Retrieves the CBC results for assignment into a UTSA position.
    2. Follows normal procedures for coding CBC results per UTSAPD General Order 600-04.
    3. In the event that the result of the CBC is other than acceptable, reviews the results with HR prior to notifying the hiring department.
    4. Provides hiring manager with the coded CBC results so that the hiring decision (or decision to allow the individual to work at UTSA in an unpaid status) can be made.
    5. Updates the CBC database with coded results of CBC
    6. Follows normal procedures for coding CBC results per UTSAPD General Order 600-04.

IX. PROCEDURES


  1. A CBC, which shall include a sex offender registration check, is required for all positions at UTSA. The following are required to have a CBC prior to employment or service at UTSA:
    1. Both internal and external Applicants that are under final consideration for a position.
    2. Volunteers
    3. Individuals performing Service Without Salary and Affiliated Workers.
    4. Student employees when newly hired, changing titles, or Transferring to another department.
    5. Staff employees that are promoted, reclassified, changing departments, or changing titles.
    6. Faculty, staff, students, or UTSA Affiliated Workers that have a break in service of four (4) months or greater.
    7. Current employees that have not previously completed a CBC for UTSA.
    8. Current employees when the President or his/her designee determines it necessary to further the goals of UTSA. The management discretion CBC procedures can be found at:  http://www.utsa.edu/hr/CBC/ManagementDiscretion.html.
  2. CBC Exemption. The following personnel actions are exempt from the requirement of CBCs for current employees:
    1. Career progression or Reclassification within a job family occurring within the current department (e.g., associate professor to full (tenured) professor or administrative associate I to administrative associate II).
    2. Involuntary Transfers or Reclassifications unless a CBC is deemed necessary by the supervisor or department head based on the circumstances.
    3. Assignment changes solely due to funding (e.g. student assistant I (work-study) to student clerk or same title and same department with an account change).
    4. Reassignments within the same department and same title with a break in service of four (4) months or less.
    5. Faculty reassignments with a break in service of four (4) months or less.
  3. Child Development Centers (CDC) fingerprint and name checks.
    CDCs operated by, on the property of, or in the facilities of UTSA will comply wtih UTS124 and all applicable state and federal laws relating to CBCs.
  4. Youth Camps
    Youth Camps operated by UTSA will comply with UTS124 and all applicable state and federal laws relating to CBCs.
  5. Volunteers in Health Care Facilities
    CBCs will be conducted on Volunteers in Health Care Facilities in accordance with UTS 124 and all applicable state and federal laws relating to CBCs.
  6. Students in Programs with Assignments to Clinical HealthCare Facilities or Involving Patient Care
    Students in an educational program that includes assignment to a clinical health care facility or whose assignment may require work with patients must submit to and satisfactorily complete a CBC.   
  7. General Information
    1. A CBC form shall be completed and signed by the individual needing a CBC, before the request for a CBC is submitted. Exception: No authorization is required if the DPS public site is used.
      1. The necessary CBC forms are found at the following sites:
        1. Vendor search
        2. DPS secure check
        3. DPS public check
        4. DPS public check wtih multiple candidates
    2. Where state or federal law requires that a position be subject to a CBC using a specific source of CBC information and/or certain procedures, UTSA will comply with such laws. To the extent such laws impose CBCs that are more extensive UTSA may rely on compliance with the statute to satisfy the requirements of this policy. UTSAPD in consultation with Human Resources will evaluate these requirements.
    3. All rules, laws, and applicable procedures must be followed under the Fair Credit Reporting Act (FCRA) for those on whom a vendor search is performed.
  8. Disqualification for CBC
    1. Except as provided in #5 below, individual with a criminal record will not automatically be disqualified from employment, promotion or appointment. A case by case review will be conducted for results obtained on the CBC by the UTSAPD and HR in consultation with the hiring manager, respective vice president or provost, and president (as needed). 
    2. When a report is received that indicates an Applicant or current employee has a criminal record that may affect the employment or service decision, the individual will be notified of this prior to the hiring decision They will be notified of their right to challenge the accuracy and completeness of the report.
    3. If the individual indicates the information in the report is incorrect or incomplete, the individual will be afforded the opportunity to present documentation to the UTSAPD that supports their dispute of the report. This documentation must be received within 3 business days.
    4. When a report from a private vendor is received that indicates an individual has a criminal record that affects the hiring decision, the resulting report is considered a “consumer report” under FCRA and UTSA must comply with FCRA disclosure and notice requirements.
    5. UTSA 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 state or federal law that is equivalent to an offense requiring such registration, unless the hiring/appointing official, as appropriate, articulates a compelling justification, the head of Human Resources, the UTSA Chief of Police and 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 UTSAPD Chief.
    6. Grievance rights to the employment or service decision.
      1. Any decision based on a CBC made by UTSA is final and may not be grieved by the following:
        1. An External Applicant;
        2. A Volunteer;
        3. An individual seeking Service Without Salary;
        4. A UTSA Affiliated Worker;
      2. Current Employees (staff) as internal Applicants or those who have a Reclassification may respond as follows:
        1. The standard grievance procedures will be used to challenge the employment decisions made based on the CBC (refer to HOP policy 3.04, Grievances of Non-Faculty Employees).
        2. If the CBC leads to a termination decision, a classified employee may appeal using the process outlined in HOP policy 3.03 Discipline and Dismissal of Classified Employees. Administrative and Professional employees are not covered by HOP policy 3.03 and may not appeal the dismissal decision.
      3. Current Faculty
        1. Standard grievance procedures will be used to challenge the employment decision as outlined in HOP policy 2.34 Faculty Grievance Procedure.
        2. If the CBC leads to a termination decision, procedures will be followed as outlined in HOP policy 2.13 Termination and Nonreappointment of Faculty Member.
  9. Self-Reporting
    1. External Applicants for employment must report in writing within five business days 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 for employment at UTSA.
    2. Current employees of UTSA 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.
    3. Failure to report under this section is a violation of this policy and may lead to disciplinary action, up to and including termination, as appropriate.
    4. Falsification or omission of criminal record information required to be reported is grounds either to reject an Applicant or discipline/terminate a current employee.
  10. Contractors. This section applies to contractors other than Child-Care and Youth Camp contractors for whom the provisions in section C and D of this policy apply. 
    1. Departments hiring an individual by contract or service agreement   shall consider the following when determining whether a CBC is appropriate:   
      1. The location of the service to be performed; (e.g. a speaker that will roam the campus freely vs. a speaker that will do a 1 hour lecture and leave the campus.)
      2. The access the individual will have to UTSA community (e.g. a presenter for a weekend seminar that has one on one access to students vs.  a presenter with supervised access to students); and
      3. The access the individual will have to UTSA resources (e.g. Contractors who have access to UTSA 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 should have a CBC.)
    2. The department that makes a request for a contractor will annotate on the routing sheet as to whether a CBC was conducted. Routing forms can be found on the UTSA Business Contract Office website.
    3. The Business Contract Office will review the decision prior to the approval of a contract or service agreement.
  11. Records. CBC records must be handled and retained in accordance with Texas Government Code § 411.094 and all other applicable state and federal laws as follows:
    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 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 prohibited thus shall not be released without seeking legal advice with respect to any requested release of such information.
    3. Destruction of Records Obtained from a Criminal Background Check Database.  UTSAPD shall destroy all records obtained from a criminal background check database about the individual six months after it is obtained.
    4. Self-Reports.  Self-reports of charges or convictions as required by this policy will be maintained with the employee’s personnel file in HR in accordance with UTSA records retention schedule.

X. SPECIAL INSTRUCTIONS FOR INITIAL IMPLEMENTATION


None


XI. FORMS AND TOOLS/ONLINE PROCESSES


CBC Categories

Guidelines for Contractors/Vendors

CBC forms

Contract Routing Form


XII. APPENDIX


None