Employment criminal background checks may include criminal information residing in law enforcement records, court records, correctional facility records, and sex offender records. In Florida, these investigations are legally required for criminal justice and law enforcement occupations and those exposing employees to children, educational, health, and other environments requiring positions of trust and responsibility to protect vulnerable individuals.
The Employment Background Checks blog article introduced the strict federal and state laws employers must follow prior to running employment background checks. These requirements also extend to the access and use of criminal information for employment purposes, when additional requirements apply.
Requirements for the Access and Use of Criminal Records
Federal and state laws limit the access and use of criminal record information. The information must be obtained in a manner that does not have a disparate impact on all applicants and/or employees, and it must comply with confidentiality requirements.
The Fair Credit Reporting Act (FCRA), enforced by the Federal Trade Commission (FTC), regulates all employment background checks, including the access and use of criminal background information. Florida state law also limits the use of arrest and conviction records for making employment decisions.
Under Title VII of the Civil Rights Act of 1964 (Title VII), an employer’s adoption of a blanket policy excluding all applicants with a criminal record may be found to be racially discriminatory. This is because of the higher rates in arrests and incarcerations for African Americans and Hispanics. Additional practices applied to a group of applicants or employees but not to another may also result in discrimination.
The Equal Employment Opportunity Commission (EEOC) provides guidance to employers on how to legally screen applicants with criminal records without engaging in discriminatory practices prohibited under Title VII. When disqualifying a prospective employee, employers must consider:
- the nature and gravity of the criminal conduct
- the amount of time has passed since the offense or sentence, and
- the nature of the job that the applicant will perform (including location, level of supervision, and interaction with other employees, among other factors).
In addition, employers must allow applicants with a record an opportunity to explain the circumstances and provide mitigating information to show that the employee should not be excluded based on the criminal offense.
Under Florida state law, employers may obtain applicant conviction information if it is relevant to the job, but the existence of (or access to) sealed or expunged (destroyed) criminal records may be denied by the applicant, with certain listed exceptions where screening is mandatory, for example, when the employment relates to education, criminal justice, the admission to the practice of law, child care licensing agency, children and families services, juvenile justice, the employment will expose the applicant to children, the disabled, the aged, or the elderly.
As with credit and other background checks, employers must secure the applicant’s permission in writing prior to obtaining a criminal background check for employment purposes. The FCRA “clear and conspicuous” written disclosure requirements also apply, and the disclosure must be a stand-alone document and not combined with other provisions.
In addition, the employer’s responsibilities do not end with securing applicant or employee permission. Subject to some exceptions (e.g., national security), if the employer makes an adverse decision based on the criminal background information, such as denying employment, it must inform the applicant or employee by providing a notice including a copy of the report on which the employer relied to make its decision, as well as a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” (furnished by the report provider.) The applicant or employee must have an opportunity to review the report and explain any negative information, or correct a mistaken report.
Regulations applicable to background reporting agencies
Although there are no time limits imposed on conviction records, FCRA prohibits consumer reports from including arrest records older than seven years old, unless the position pays an annual salary over $75,000. Conviction records may be included with no time limitation. Agencies are responsible to keep accurate and up to date records and must conduct a reasonable investigation if an applicant disputes the records. They must also inform those who have received the report of any errors found during the investigation and must correct the records accordingly.
Incentive to conduct criminal background checks
Florida law incentivizes employers to conduct criminal background checks. In situations where an employee commits an intentional tort (i.e., a civil wrong or injury) against another employee, the employer is presumed not to have been negligent in hiring the offending employee if an employer background investigation previously conducted did not reveal that the individual was not unsuitable for the job or for general employment.
Specifically, Florida Statute Section 768.096 provides that an “employer is presumed not to have been negligent in hiring an employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed, or of the employment in general.” The scope of the investigation by the employer must include a criminal background investigation, a reasonable effort to contact references and former employers, a completed job application including questions related to crimes and past intentional tort claims, a driving record check (if related to the prospective job), and an interview with the prospective employee.
In addition, except for employment with law enforcement, fire fighting, and corrections, Florida law prohibits state and local agencies from denying applicants a license, permit, or certificate to engage in a particular profession (or industry) based on a prior conviction, unless the conviction was for a felony or first-degree misdemeanor and is directly related to the work the applicant will perform in that profession. There are also special rules for certain drug offenses (e.g., those convicted of drug offenses must undergo rehabilitation to qualify for public employment.)
A note on drug and alcohol testing
Employers are allowed to test applicants and employees for drugs and alcohol as part of a “drug and alcohol free” workplace policy. Employers wishing to conduct drug and alcohol screenings must have a policy applicable evenly to all. Employers receiving federal funds are required to conduct drug and alcohol testing and must be compliant with the Americans with Disabilities Act, which requires employers to make a contingent employment offer before testing.
Damages and Statute of Limitations
FCRA provides for a successful claimant’s recovery including costs, attorney’s fees, and punitive damages. The willfulness requirement for punitive damages can be triggered by “reckless disregard” of the FCRA’s requirements, even when no injury exists. The statute of limitations to file a claim under FCRA is the earlier of two years after the date of discovery of liability, or five years after the violation occurred.
Florida law penalizes as a misdemeanor of the first degree the willful, knowing, or intentional disclosure of confidential employment screening information when released for purposes other than employment screening. In the case of juvenile records, the penalty becomes a felony of the third degree. An applicant or employee may bring a civil action against employers that violate the law.
Additional penalties may apply under federal and state law to discriminatory practices while conducting and acting upon employment background checks, as well as to the handling and protection of the background check information.
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a criminal background check compliance or violation situation and offer legal representation, if necessary. Click here to contact an attorney now.