| (a) Pursuant to §1702.230 of the Act, the pre-employment
background check of the applicant described in subsection (c) of this
section must be conducted when:
(1) An application meeting the requirements of §35.21
of this title (relating to Individual License Applications) is submitted;
(2) The department's website does not indicate the
application is complete within 48 hours after the submission of the
applicant's fingerprints; and
(3) Regulated services are to be performed by the applicant
prior to issuance of the license.
(b) The ability to perform a noncommissioned regulated
service prior to licensure is conditional on either:
(1) Department notification that a complete application
has been received and:
(A) Performance of the pre-employment background check
required under subsection (c) of this section;
(B) The determination that the applicant is not disqualified
based on the background check; and
(C) The employer's retention of the search results
in the employee's file, as required by subsection (e) of this section;
or
(2) The absence of notification by the department that
a complete application has been received, the passage of 48 hours
since submission of the application materials required by §35.21
of this title, and:
(A) Performance of the pre-employment background check
required under subsection (d) of this section;
(B) The determination that the applicant is not disqualified
based on the background check; and
(C) The employer's retention of the search results
in the employee's file, as required by subsection (e) of this section.
(c) For purposes of subsection (b)(1) of this section,
the pre-employment background check must at a minimum include the
review of either the department's publicly accessible criminal history
website or a commercial criminal history website, review of the department's
sex offender registry website, and confirmation the applicant is not
disqualified for the license based on either the applicant's criminal
history or the requirement to register as a sex offender under Chapter
62, Code of Criminal Procedure. Nothing in this subsection precludes
an employer from using a more stringent method of determining an applicant's
eligibility.
(d) For purposes of subsection (b)(2) of this section,
the pre-employment background check must at a minimum include the
review of the department's publicly accessible criminal history and
sex offender registry website(s), and confirmation the applicant is
not disqualified for the license based on either the applicant's criminal
history or the requirement to register as a sex offender under Chapter
62, Code of Criminal Procedure. Nothing in this subsection precludes
an employer from using a more stringent method of determining an applicant's
eligibility.
(e) The employer must maintain written documentation
of the pre-employment check for at least two (2) years, regardless
of the subsequent employment status of the applicant. The absence
of such documentation constitutes a rebuttable presumption that the
background check was not conducted.
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