As an employer in Florida, you understand how priceless it is to get good employees that will help you build your business and protect the image of your brand is invaluable.
Having the right employees will accelerate the growth of your brand and create a strong team that will work to make sure your brand succeeds.
When you’re hiring, it might seem a daunting task to get the right individuals for the available options. You can’t rely on resumes as most applicants cooked up good records to get employed.
Here’s where Florida Background Check for Employment comes in handy. Before employing any applicant, ensure you perform a background check on them, and the result is clean.
To avoid breaking the rules and exposing your brand to liability, don’t rely on the information you get from some sources when employing workers.
In this guide, we shall discuss all you need to know about conducting background checks in Florida by the state’s laws.
What is Background Check?
A background check is a process by which a company or person verifies that someone is who they claim to be. It allows you to review and confirm the actuality of someone’s criminal history, employment, education, and other essential information about their past.
In some cases, background checks include previous arrest records, address information, and previous interviews.
Information about an individual’s background check is obtained from various records, like FBI and law enforcement agencies.
Depending on the type of check and what an employer wants, it can be conducted on state-based records or nationwide records. In Florida, most background checks include public records of the state only.
Background checks automatically reveal whether an applicant is fit for a job or will be disqualified due to certain crimes found in their record. This is especially if an applicant is applying to work in a public agency such as hospitals and elderly care facilities.
Federal Background Check Laws
Employers must comply with federal background check laws when performing employment checks on their applicants.
Here are the two most crucial federal background check laws:
This is an essential law of pre-employment background checks. Under Title VII of the Civil Rights Act of 1964, employment discrimination is prohibited based on the characteristics of the applicant or the employer.
This means that an employer must access convictions related to their job before deciding whether or not to hire an applicant based on their criminal record.
Far credit reporting act is a consumer privacy law enforced by the Federal Trade Commission to protect and ensure consumers’ privacy in the information collected by consumer reporting agencies (CRAs) and hiring employers.
Before conducting background research, an employer must submit their application to seek their consent and obtain written approval. This rule also regulates how employers can use their applicant’s information obtained from background checks.
If an employer decides not to hire an applicant due to their background check, they must complete the adverse action process before making a final decision.
What Makes Florida Different: Florida State Background Check Rules
While some general federal laws and regulations guide background checks, certain states have additional rules, and Florida is one of these states. Here are the three most essential background checks rules that are unique to Florida:
While Florida allows employers to perform a background check on employees before hiring, §112.011, Fla. Stat. (2021) states that an employer is not permitted to deny employment to applicants that have committed low-level crimes.
However, employers can deny applicants in the public sector employees if they are found with first-degree misdemeanors, felonies, and related crimes.
Applicants for Public Employment With Record of Drug-Related Offences
Under §775.16, Fla. Stat. (2021), applicants found with drug-related crimes involving trafficking and sales are banned from working in state agencies.
However, applicants can overcome this disqualification if they complete all the terms and conditions of their sentences and pass through state-approved rehabilitation programs.
Ban the Box laws are those regulations that stop employers from asking their applicants about criminal history.
Florida doesn’t have generalized ban-the-box laws; however, some of its cities and counties have enacted ban-the-box laws.
In Oct 2021, Orange County passed a ban on the box law for public employees that prohibit them from asking applicants about their criminal convictions during the application process.
The City of Lakeland also enacted a ban on the box law in 2021, which prohibits city employers from asking their applicants about convictions.
Ban the box laws enacted by cities and counties don’t affect private employers.
Applicants aren’t required to expose arrests that have been expunged. Even if an applicant revealed such convictions, the employer shouldn’t consider that when hiring.
If an applicant performs a Florida background check before employment, but their employer overlooks all red flags and employs them, they are presumed innocent if any potential negligence Happens. This protects the employer should the applicant cause any harm to a colleague or customer.
Private employers have the right to consider all criminal records during the employment process. However, if the employer doesn’t feel the applicant’s relevance to the position, the applicant can face employment discrimination action under Title VII of the Civil Rights Act of 1964.
Types of Background Checks in Florida
Florida has two types of background checks; they’re:
These are state-only, name-based checks. They check the applicant’s employment history and state or local criminal history. Level 1 will also check whether an applicant’s name is on the national sex offender registry. To be subjected to this check, an applicant should neither be awaiting arrest nor hold a delinquency record, as the state’s statutes ban.
This is a broader criminal background check that also covers national records. Unlike level 1 check, this is a state and national check that includes fingerprinting and a thorough examination by the Federal Bureau of Investigation (FBI) and Florida Department of Law Enforcement (FDLE). This type of check is required for positions that require a certain level of honesty and trust. If an applicant is found with offenses like murder, assault, kidnapping, sexual offenses, and other related crimes, they’ll be rejected by their employer.
Background checks via FDLE will check whether an individual has been arrested or convicted of a crime. According to the Florida Government website:
Level 1 and 2 standards provide that no persons have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent. The record has not been sealed or expunged for any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction2 :
(a) Section 393.135, relating to sexual misconduct with sure developmentally disabled clients and reporting such sexual misconduct.
(b) Section 394.4593, relating to sexual misconduct with certain mental health patients and reporting of such sexual misconduct.
(c) Section 415.111, relating to adult abuse, neglect, or exploitation of aged persons or disabled adults.
(d) Section 777.04, relating to attempts, solicitation, and conspiracy to commit an offense listed in this subsection.
(e) Section 782.04, relating to murder.
(f) Section 782.07, relating to manslaughter, aggravated manslaughter of an older adult or disabled adult, or aggravated manslaughter of a child.
(g) Section 782.071, relating to vehicular homicide.
(h) Section 782.09, relating to the killing of an unborn child by injury to the mother.
(i) Chapter 784, relating to assault, battery, and culpable negligence if the offense was a felony. (j) Section 784.011, relating to assault if the victim of the offense was a minor.
(k) Section 784.03, relating to the battery if the victim of the offense was a minor.
These are some of the disqualifying offenses an employer should take note of. For more, you can visit the Florida Government site.
There are only two background checks in Florida – Level 1 and Level 2- as statutorily defined in Ch. 435, Fla. Stat. (2021).
There isn’t a level 3 background check FL. However, some refer to the Florida Department of Law Enforcement (FDLE) background check as a level 3 check.
What Information is Contained in the FDLE Background Check?
Many employers use the terms background check and criminal background checks interchangeably. This causes a lot of confusion for applicants and their employers. To clear the air, here’s what FDLE says about the information that’s contained in their background check:
From the FDLE perspective, a background check is a criminal history record check to determine if a person has been arrested and convicted of a crime. Although some companies use the phrase “background check” to include driver’s record checks, credit checks, or interviews with neighbors and employers, for FDLE purposes, it consists of a search of the following databases:
The Florida Computerized Criminal History Central Repository for Florida arrests (state check).
The Florida Computerized Criminal History Central Repository for Florida arrests AND the national criminal history database at the FBI for federal arrests and arrests from other states (state and national check).
The Florida Crime Information Center for warrants and domestic violence injunctions (warrant files check).
The national record check is based on the submission of fingerprints. For state record checks, recommendations may be based on names (and other descriptors) or fingerprints for state record checks.
Limitations to the Background Check Information Employers can Use?
Florida background check information is subject to changes to the FCRA’s “7-year rule, which states that a particular criminal record must be removed from an applicant’s history after seven years.
These include lawsuits, judgments against an applicant, and arrest records. FCRA also imposes additional restrictions on employers.
Also, FCRA gives employees the right to dispute the result of their background check if it’s not current and accurate. Thus the investigating agency will perform an investigation, and if the report is incorrect, both the applicant and the employer will receive written notices.
If the background check agency or employer refuses to adhere to these instructions, an applicant has the right to file a claim under FCRA.
How to Stay Compliant With FCRA as an Employer
If you’re an employer wishing to conduct background tests on your applicants, you must comply with the state, FCRA, Title VII, and local laws.
Violating any of these rules might have you face penalties or huge fines.
Here are some tips to stay safe:
If you’re a public employer in a city that has passed ban-the-box laws, you must consider those rules before and when performing a criminal background check.
After interviewing an applicant, you can only conduct a background check in some counties.
Before conducting a background check on any applicant, ensure you’ve notified the applicant.
Also, make the notice in writing in a standalone form. Make sure you’ve obtained written consent from your applicant before moving forward.
If it comes to your notice that an applicant has a criminal conviction, you’re to individually access that crime and see how it relates to the job before making a decision.
The EEOC requires employers to consider these before making a hiring decision:
Also, you should give your application a chance to explain the conviction and how it took place.
As an employer, if you find any information on your applicant’s background check result and feel it’s not safe to hire them, you are to send a pre-adverse action notice. The notice will include the conviction information and a copy of the report.
You should give your applicant time to provide pacifying evidence or file for correction if the information is inaccurate.
If you aren’t satisfied with hiring the applicant after completing the pre-adverse action, you should send a final adverse action notice.
In the notice, you are to provide the name and contact of the CRA that provided the report, a copy of the applicant’s right, and a statement showing you made the hiring decision.
How Can You Get a Florida Background Check for Employment?
In Florida, the Florida Department of Law Enforcement (FDLE) maintains a central repository of the state criminal record, which keeps information on all the arrests and convictions of Florida citizens.
Applicants’ criminal history can be found on the agency’s website via instant certified or non-certified search. You can also conduct an ORI search if you work for an authorized agency with an ORI number.
However, these checks will likely not give you the full information you need about your applicant, like their education and work history.
Employers can also search local courts for your applicant’s criminal records. However, this can be time-consuming, especially if the applicant has lived in several areas.
To avoid making adverse hiring decisions that will lead to breaking FCRA’s rules, it’s recommended for employers to work with professional background check service providers.
How Far Do Background Checks Go in Florida?
The FCRA has rules on how far back criminal background checks can go. Under these laws, it is forbidden for CRAs to report arrest records that didn’t result in a conviction and is more than 7 years old to be used in employment decisions.
A CRA is forbidden from reporting the following information except if the company pays more than $75,000:
However, FCRA’s limitations don’t include education and employment histories. Therefore this information will be added to your record no matter the years.
How Much Does a Florida Background Check for Employment Cost?
The Florida Department of Law Enforcement (FDLE) charges $24 per criminal background check.
However, some private Background Check Providers offer the same service at different prices.
How Long will a Background Check Takes in Florida
The time it takes to receive your criminal background check report depends on how it is completed. Getting a criminal report history from FDLE can take 2 weeks or less.
The process can take longer if you’re using local courts for employment criminal background checks.
Conducting a criminal background check for applicants before hiring saves you from employing the wrong applicants. However, you must ensure you perform checks in compliance with the laws passed by FRCA.
Ensure you send a written notice and get written approval from your applicant. Also, make sure you send a pre-adverse and final adverse action notice before making a hiring decision.