Legal Issues to Consider in Performing Criminal Background Checks on Potential Employees

All businesses who conduct criminal background checks on potential employees should be mindful when determining how to use the background checks in making hiring decisions. While federal law places some limits on how employers can use criminal background checks in making job decisions, Florida law provides very little protection for applicants. In fact, it provides employers a valid basis to run criminal background checks.

Federal Protections for Applicants With a Criminal Record

There are two federal laws that may provide some level of protection to applicants with criminal records.

1. 1. The Fair Credit Reporting Act (“FCRA”) creates guidelines that employers must follow when hiring a third party agency to run a background check and provide a consumer report, which includes information regarding credit history, criminal records, and other information pertaining to an applicant’s character. The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:

a)  Obtain written consent from the applicants prior to running a criminal background check.

b)  Inform the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.

c)  Inform the applicant after the employer makes a final decision not to hire him or her based on the information in the report.

Firms that run background checks also have obligations under the FCRA. When it comes to criminal records, agencies are not allowed to include arrest records that are more than seven years old, unless the position pays an annual salary of more than $75,000. Agencies may include conviction records regardless of when they occurred. Consumer reporting agencies must also take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

2)  Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring.

The Equal Employment Opportunity Commission (“EEOC”) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

1. • the nature and gravity of the criminal offense or conduct
   • how much time has passed since the offense or sentence, and
   • the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

The EEOC has said that employers should give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Florida Laws on Use of Criminal Records

Florida law prohibits state and local agencies from denying someone 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 type of work the person will do in that profession. The law creates special rules for certain drug offenses. Beyond that, Florida does not have additional restrictions on performing background checks.

In fact, Florida law provides employers with an incentive to consider an applicant’s criminal record. Some states allow people who are injured by an employee’s misconduct to sue the employer for “negligent hiring,” claiming that the employer should have known that the employee posed a risk of injury. In Florida, employers are legally presumed not to have been negligent in hiring if they conduct a background investigation before hiring employees, including a criminal records check. As long as the employer conducted such a check, and it didn’t 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 presumption that it did not act negligently. Employers are not required to conduct background checks, and they will not be presumed negligent if they do not. However, an employer is legally protected only if it conducts these checks, including a criminal records check.