KJ McElrath  |  August 21, 2019

Category: Labor & Employment

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A man conducts a job interview.

State of Florida background screening requirements apply to job seekers applying for certain positions, including working with vulnerable persons, such as the elderly, children and the disabled.

While applicants with criminal records have certain legal rights in other states, they may not have the same rights under Florida law. This can be problematic in the Sunshine State, as Florida statutes allow victims of employee misconduct to hold a company liable if they can show that the worker posed a threat and his or her employer should have known about it (these come under the state’s “negligent hiring” laws). That gives employers an incentive to scrutinize job applicants even more strictly.

What Are State of Florida Background Screening Requirements?

In Florida, there are two types of background checks. Level 1 includes a check of an applicant’s employment history, any state or local criminal convictions and whether or not the individual is registered as a sex offender. Level 2 requires fingerprinting and an FBI background check. Those whose background checks come back with “prohibited offenses” will be rejected.

What Are “Prohibited Offenses”?

The list of prohibited offenses is long. Generally, under a Level 1 background check, prohibited or disqualifying offenses include several related to:

  • sexual misconduct, assault or abuse
  • violent crimes
  • arson
  • burglary
  • aiding and abetting the criminal activity of another
  • smuggling contraband into a correctional facility

Level 2 adds to that list other offenses related to:

  • domestic violence
  • financial crimes (i.e., fraud and racketeering)
  • identity theft

Are There Limitations on What Information Can be Used?

In general, unless a felony conviction has been expunged (removed) from your record, it remains there for life. This said, certain records are limited by the federal Fair Credit Reporting Act (FCRA), which supersedes state statutes. Under the FCRA’s “7 year rule,” certain records must be removed after seven years. These include:

  • civil lawsuits
  • judgments against you
  • arrest records
  • paid tax liens

State of Florida background screening requirements notwithstanding, the FCRA requires an employer to:

  • obtain applicants’ consent before running a background check

  • inform applicants if the contents of the report could disqualify them from being hired

  • provide applicants with a copy of their reports

Under the FCRA, an employer who runs a background check is legally obligated to insure that the information is accurate and up to date. An applicant has the right to dispute the contents of a background report, which requires that the reporting agency conduct an investigation. Should the report be proven inaccurate, both the applicant and the employer must be informed.

If the employer or its background check service provider fails to follow these requirements, the applicant may have a claim under the FCRA.

Is a Conviction Always a Disqualification?

Not necessarily. The Equal Employment Opportunity Commission (EEOC) provides guidelines on how and when employers may automatically disqualify applicants if their records suggest that they would pose an unreasonable risk. They are required to consider:

  • the seriousness of the offense in question
  • the amount of time since the conviction
  • how the offense relates to the job

In addition, an employer should provide an applicant with a chance to explain any mitigating circumstances.

Join a Free Florida Employee Background Check Class Action Lawsuit Investigation

If a company performed a background check on you as part of the pre-employment process in Florida in the last 5 years, an experienced employment attorney can help you determine if the employer complied with federal rules during that process.

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This article is not legal advice. It is presented
for informational purposes only.

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