Florida Background Check General Requirements

In Florida, as in most states, background checks are typically used in both public and private employers’ hiring processes, but only certain select providers are permitted to provide this information in such contexts (please note: the website on which this article appears is NOT one of those authorized credit reporting agencies for use in employment background checks and other contexts). These employment verifications (which may be conducted by only select consumer reporting agencies pursuant to law) typically encompass both criminal and non-criminal background checks in the goal of confirming one’s identity. It also serves as a confirmation that the Social Security number provided matches such other submitted information, such as the name and addresses, for example, that were also provided.

Florida is one of twenty-nine states, in addition to the District of Columbia, that does not enforce additional restrictions beyond those imposed by the Fair Credit Reporting Act 15 U.S.C. § 1681 et seq. (FCRA). There are no uniform fifty state-wide regulations that require and enforce additional Ban-The-Box and fair hiring laws and related requirements above and beyond FCRA or such rules mandated by the Federal Trade Commission, U.S. Equal Employment Opportunity Commission (EEOC) (based on Title VII of the Civil Rights Act of 1964) or other applicable federal agencies. The use of background reports in connection with hiring and related policies are therefore primarily determined by the Fair Credit Reporting Act: for example, employers must obtain written consent from each and every prospective employee prior to the background check being performed, they must keep the information confidential, and use the information only as specified by those processes outlined by FCRA. This federal law also dictates those procedures that an employer must follow if they decide not to hire an individual based on the information reported in the background screening.

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Criminal, Arrest, Sealed or Expunged Records

FCRA does not explicitly prohibit or prevent public and private employers in Florida from refusing to hire a candidate based on that individual’s criminal record (meaning criminal convictions, not arrests): public employers can disqualify a candidate if that person has been convicted of a felony or first-degree misdemeanor that directly relates to the occupation for which they are being considered. On the other hand, there are few restrictions on the severity of the conviction that a private employer may consider to disqualify a candidate. However, if there was an adverse action against the prospective employee, FCRA requires employers to notify the applicant what information in their background check report, if any, contributed to the disqualification, and permit the applicant an opportunity to review and dispute the contents of the report. The EEOC’s guidance similarly requires prospective employers to consider: (i) the nature and gravity of the criminal offense or conduct; (ii) how much time has passed since the offense or sentence, and (iii) the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and the like), and employers must give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information to demonstrate that the employee should not be excluded based on the offense.

Florida employers, public or private, are legally allowed to inquire about a potential hire’s criminal conviction records and use them in employment-related decisions (under the guidelines set forth above), even if they are not already included in the Florida background check report.

Employers may inquire about sealed or expunged records, but candidates are not legally obligated to disclose that information.

While there may be no additional laws dictating the use of background checks in companies’ hiring practices beyond the FCRA, Florida law actually encourages employers to perform background checks before making a final hiring decision to help them avoid the liability of an employee’s wrongdoing and prevent so-called “negligent hiring”— certain states allow those injured by an employee’s misconduct to sue the employer claiming that the employer should have known that the employee posed a risk of injury to coworkers and/or the public. In Florida, employers are presumed not to have been negligent in hiring if they conducted a background investigation before hiring, including a criminal records check. As long as the employer conducted such a check and did not uncover any information reasonably demonstrating that the employee was unfit for the job (or unfit for employment in general), the employer is entitled to a legal presumption that it did not act negligently. In this scenario, though prospective Florida employers may not be required to conduct background checks, and should not be presumed negligent if they fail to, an employer is only entitled to the legal presumption if it did in fact conduct such criminal records checks. Private employers are encouraged to consider the relevance of the conviction to the job to prevent accusations of employment discrimination.

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