Do you have a criminal record? Some estimate that up to one in four Americans do. Surveys show that a majority of employers –92%, according to one survey – perform criminal background checks when hiring for at least some positions. If a potential employer finds out that you have an arrest or conviction record, you might find it difficult to compete for jobs, especially in today’s tight job market.
Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. However, Florida law provides very little protection for applicants. In fact, it gives employers a legal incentive to run criminal background checks.
Federal Protections for Applicants With a Criminal Record
There are two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. Criminal background checks may include errors, such as information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, multiple listings of the same offense, and even records that belong to someone else entirely.
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:
- Get the applicants written consent ahead of time.
- Tell 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.
- Notify 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. They must 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.
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. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
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:
- 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).
And, the EEOC has said that employers should give applicants with a 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
States take a variety of approaches to employer use of criminal records. Some states prohibit employers from asking about arrest records or records that have been sealed or expunged. Some states have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
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.)
In the regular employment context, however, Florida law actually 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 aren’t required to conduct background checks, and they won’t be presumed negligent if they don’t. However, an employer is legally protected only if it conducts these checks, including a criminal records check.