April 9, 2012
The investigation into a prospective employee's background may require a license as a private investigations company, depending on the nature of the information sought or obtained and who is performing the service. Section 1702.104 of the Occupations Code provides in relevant part that a person must be licensed who "engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to ... crime or wrongs done or threatened against a state or the United States ... [or] the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person..."
Chapter 1702 exempts a person who is engaged in obtaining information that is a public record under Chapter 552, Government Code, regardless of whether the person receives compensation; is not a full-time employee, as defined by Section 61.001, Labor Code, of a person licensed under this chapter; and does not perform any other act that requires a license under this chapter. See §1702.324(b)(5). Were such an individual engaged in obtaining exclusively public records on a prospective employee, no license would be required.
In addition, investigations conducted by an employee on behalf of the employer, in connection with the affairs of the employer, do not require a license. See §1702.323(a).
However, Section 1702.324(b)(4)'s exemption relating to pre-employment testing or interviewing is not applicable to this scenario. That exemption is specific to the testing and interviewing of the applicant only, not to background investigations.
Investigative work performed within the state, including contacts or interviews made from outside the state to sources within the state, require licensure. And the solicitation of such services is itself regulated. See §1702.101.