Background Checks: A Guide For Florida Employers

Background Checks: A Guide For Florida Employers

Michelle Patrick
Michelle Patrick
 | 
All employers want their businesses to succeed and hiring the right employees is integral to that success. As a Florida employer you will have to choose carefully when hiring new employees. 

Many employers believe that one of the best ways to screen applicants for employment is to run a background check on them. While this has become more and more common in the hiring process, there are laws, both federal, state and local, that employers need to be aware of especially when considering an applicant’s prior criminal history. This is true particularly in light of the fact that it is estimated that 1 out of every 3 or 4 Americans has a criminal history. 

Federal Law

The Fair Credit Reporting Act (FCRA) is the federal law that governs background checks and Florida employers need to understand it and make sure that they do not run afoul of it. The FCRA requires, among other things, that:
  1. Criminal records older than 7 years be removed from an applicant’s history;
  2. Employers get written permission from applicants before running a background check; 
  3. Employers provide applicants with a copy of the background check;
  4. Employers notify applicants that they were not selected for hire because of the results of the background check; and
  5. Employers notify applicants that they have the right to dispute the contents of the background check if the information is not accurate. 

While Title VII of the Civil Rights Act of 1964 (Title VII) does not specifically refer to background checks, it does prevent discrimination in employment and this includes hiring. The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing Title VII, has issued guidelines for employers to follow when making hiring decisions where an applicant has a criminal history. The EEOC encourages employers to give applicants an opportunity to explain the conviction and requires that employers consider:
 
  • the severity of the offense,
  • the amount of time that has passed since a conviction; and
  • how the offense relates to the job. 
So for example, an applicant for a bank teller position who was convicted of embezzlement two years prior to applying for the bank teller position would likely not have grounds for a Title VII claim. Embezzlement is a severe offense, it was relatively recent and it directly relates to a teller position because tellers have constant access to money. The same would not necessarily be true if that same applicant was simply applying for a job where they would be answering phones and directing calls to the appropriate person. While embezzlement is a serious offense, and it was relatively recent, it should not have any bearing on a job where the only duty is to answer phones. There would be a greater chance of an applicant denied employment succeeding in a Title VII claim in this scenario. 

Florida Law 

Florida does not have a specific state law governing background checks and how a criminal history revealed by a background check can be used, so Florida employers must follow the FCRA and Title VII. However, some cities in Florida including Clearwater, Daytona Beach, Jacksonville, Orlando, Tampa and Tallahassee have made it illegal for employers to ask about criminal history on the initial employment application. 

Some jurisdictions, including Daytona Beach, Jacksonville, Miami-Dade, Orlando and Tampa, have made it illegal for employers to run a background check until after they have made a conditional offer of employment to the applicant. This means that employers cannot ask about criminal history during the initial interview. 

Should Employers Run a Background Check on Job Applicants?

It makes sense that as a Florida employer you want all available information about an applicant in order to make the best hiring decision. If you choose to run a background check you should: 

 
  1. Run it on all potential applicants. Failure to do so could lead to your business being sued for differential treatment under Title VII. 
  2. Check the laws applicable to your city or county. As stated above, in certain jurisdictions you cannot ask about criminal history on an employment application and/or until after a conditional offer of employment has been made.
  3. Make sure that you do not have a blanket policy excluding anyone with a criminal history. Such a policy could violate Title VII. 

Florida employers should also be aware that Florida law allows employers to be sued for “negligent hiring.” A claim for negligent hiring arises when the injured party claims that the employer should have known that an employee posed a risk to that employee, and/or the business. For example, if an employee had been convicted of multiple assaults against strangers in the 6 months prior to hire, was hired anyway and then assaulted another employee, the employee who was assaulted could have a claim against the employer for negligent hiring. A background check would have shown a criminal history and may have prevented the initial hiring and therefore a claim against the employer. 

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps. 
 
Michelle Patrick

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