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Why Florida Employers send you copies of your Criminal History Record

Florida Employers must comply with certain federal laws that control when and how a potential employee's credit history and criminal record may be used for hiring and firing purposes. Unlike some states that forbid an employer from asking certain questions, Florida has not enacted any state law statutes controlling whether employers may obtain criminal history information for employees or job applicants. The Fair Credit Reporting Act (FCRA) controls what type of arrest records may be reported in a consumer report, which is what an employer would receive if he or she hires a company to perform background checks on potential employees. The statute forbids reporting any arrest records, civil suits, or civil judgments that were entered 7 years or more before the background report is issued. An exclusion allows agencies to report all arrests that have ever occurred if the report is used in connection with the employment of any individual who will have an annual salary that equals or may be reasonably expected to equal $75,000.

The FCRA controls what type of information can be contained on a report as well as what notifications a potential employer must provide to the applicant before and after using a criminal history report.

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Why was the FCRA passed?

The FCRA was enacted in order to ensure that consumer reporting agencies report on targets of background investigations fairly, impartiality, and with respect for the subject’s right to privacy. Furthermore, the FCRA was designed to require consumer reporting agencies to adopt reasonable procedures that were fair and equitable to the target of the background check, ensuring the information reported is accurate, relevant, and properly used. A person who willfully or negligently fails to comply with the FCRA reporting requirements may face civil liability. A person who obtains information controlled by the FCRA under false pretenses opens him- or herself to criminal liability, including fines and imprisonment.

What does a Florida Employer have to do under the FCRA?

An employer intending to use a criminal record as a factor in an employee’s potential or continued employment is required by the FCRA to make a “clear and conspicuous disclosure,” in writing, to the employee. This disclosure must be given before the report is requested from a vendor and must be its own, separate document. Verbally telling an employee that a criminal records inquiry will be made or hiding the disclosure in the middle of an application will not be sufficient under the FCRA.

An employer is also required to make notices both before and after taking adverse action upon a current or potential employee based in whole or in part on a criminal record. Adverse action is defined as “any … decision for employment purposes that adversely affects any current or prospective employee.” The employer is required to provide the applicant with a copy of the report used to make the decision to take adverse action as well as a written description of the applicant’s rights from the Federal Trade Commission. The purpose of this requirement is to give an applicant a chance to explain or discuss the report with the employer, though the employer is not required to take any action or change his or her decision in any way regardless of what the applicant relates. Once the adverse action is taken, the employer is required to provide the rejected applicant or former employee with additional notice of the action, the contact information of the agency from which the information was acquired, and another copy of the report. These requirements are subject to an exception for employers hiring truck drivers by phone, mail, or computer.


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