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Can Florida Employers Use Criminal Records and Arrest Record When Screening Applicants?


For those who have a criminal record, obtaining a job can sometimes prove to be more challenging.

Florida employers often use criminal backgrounds checks as part of their screening and hiring process. The use of criminal background checks has become more common in recent years: The National Association of Professional Background Screeners reports that 95 percent of American employers require background checks for at least some of their positions.

This raises an important question: Do employees have any legal protections against criminal background checks? In Florida, the answer is that employees/applicants have some limited rights — but employers have wide discretion to rely on background checks. Here, our top-rated Miami employment law attorneys provide an overview of the most important things that employers and employees need to know about the use of criminal records in the hiring process.

Florida Allows Full Background Screening; Incentivizes Employers to Check Criminal Records 

In recent years, some states have made reforms that put additional emphasis on restricting the use of background checks. Most notably, California passed a ‘ban the box’ law in 2017 that prohibits companies from seeking criminal background information before making a conditional job offer.

However, Florida is not one of the states that have restricted background checks. Florida law does not provide applicants with any protections against criminal background checks.

Quite the contrary; some aspects of Florida law actively encourage companies to run such checks. When employees cause serious injuries or major property damage, companies may face a lawsuit for ‘negligent hiring’. Under Florida law, companies are presumed not to be negligent in hiring if they conduct full background checks and only hire workers that have no adverse information indicating that they might be unfit for the job. 

Federal Law Provides Employees With Some Protections 

While Florida law does not do much to restrict employers from conducting criminal background checks, federal law does provide applicants with some limited legal rights. Under the Fair Credit Reporting Act (FCRA), employers must obtain consent from applicants before they access a criminal background record. In addition, the FCRA requires companies to take reasonable measures to ensure that they are relying on accurate background check information. The purpose of the FCRA is to give applicants and employees an opportunity to correct false or misleading records. To be clear, federal law does not in any way prevent employers ƒrom disqualifying an applicant because of a criminal record. Beyond the FCRA, employers that are covered by Title VII of the Civil Rights Act must ensure that they are not using criminal background check in a discriminatory manner.

Get Help From Our Miami Employment Attorneys Today

At Pike & Lustig, LLP, our skilled Miami employment lawyers are strong, effective advocates for our clients. No matter the circumstances of your case, we will help you achieve the best results. To arrange a fully confidential employment law consultation, please contact us today. From our offices in West Palm Beach, Miami, and Palm Beach Gardens, we handle employment cases throughout South Florida.



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