There are several restrictions on the books in Florida at the state level and in individual counties that limit the use of background checks for employment purposes. Below, we have outlined notable restrictions and how they impact employers in the state of Florida.
Employers in Florida are legally permitted to inquire about arrest records and use them in employment-related decisions. Most criminal history background check reports—this Florida background check included—will not include arrest records.
Sealed or Expunged Records
Job candidates are not required to disclose arrest or conviction records that have been sealed or expunged. These offenses are treated as if they do not exist and they will not show up on a background check of Florida state records.
Both public and private employers in Florida are permitted to use Florida background checks (and other types of background screenings) to vet employees. Public employers are only allowed to disqualify candidates for felony or first-degree misdemeanor convictions, and only if the crime in question relates directly to the job at hand. Private employers can consider all conviction history information in employment-related decisions, including lower-degree misdemeanors. Employers should still consider the nature of criminal convictions and their relevance to the job at hand. Any employer with a policy for disqualifying all candidates with criminal histories will likely face accusations of employment discrimination under Title VII of the Civil Rights Act of 1964. This type of accusation is severe and can lead to major ramifications.
Ban the Box
Florida has no statewide ban the box legislation on the books at this time. Many jurisdictions in the state have adopted local laws or ordinances that limit employers’ ability to ask criminal history questions in job applications. Clearwater, Daytona Beach, Gainesville, Fort Myers, Jacksonville, Miami-Dade County, Orlando, Pompano Beach, Sarasota, St. Petersburg, Tampa, and Tallahassee have all banned the box for public jobs. In six of these jurisdictions—Daytona Beach, Jacksonville, Miami-Dade, Orlando, Sarasota, and Tampa—employers cannot conduct background checks on applicants until making conditional offers of employment. No jurisdictions in Florida have banned the box for private employers yet.
Florida law provides employers with considerable incentives to conduct detailed background checks on potential hires. In Florida, if an employer runs a background check and doesn’t uncover any significant red flags, the company earns a presumption of innocence in any potential negligent hiring cases. Even if the employee in question causes injury to a customer, a colleague, or something else, the fact that the employer conducted a detailed background check will legally shield the business from a negligent hiring lawsuit. This factor encourages many Florida employers to conduct Florida state background checks on all new hires, along with completing other types of vetting.