As an employer, you want to do everything you can to ensure you make good hiring decisions. Your employees represent you and your company both on the job and off. Making a poor decision can result in unhappy customers and potential liability. High employee turnover also creates unnecessary financial expenses and a loss of productivity.
To help protect themselves, many employers rely on criminal background checks, but what does the law say about this?
Employers are subject to both state and Federal laws, which sometimes seem to counter one another. Here’s what Florida employers need to know about the legality of pre-employment background checks.
Florida State Law
While some states, like California, have recently passed laws limiting the use of pre-employment background checks, the state of Florida has not. In fact, current state laws actually provide incentives for employers to use them.
If you hire an employee who seriously injures someone or causes major property damage, you can be sued and held liable for “negligent hiring.” Under Florida law, if you can show that you conducted a full pre-employment background check and did not hire someone with a red flag, you’re deemed not to have been negligent. The protection this offers makes running background checks a no-brainer for most employers.
While Federal laws don’t conflict with the Florida incentive, they do offer some protection for job applicants. First, you must inform applicants that you intend to run a criminal background check and qualification for a job offer is dependent on the results. This notice must be in writing and must be provided as a stand-alone document. The employee must provide written consent before the check is conducted. If ongoing checks are a condition of employment, this must be clearly indicated in your company’s written policies.
The Fair Credit Reporting Act also requires you to take reasonable steps to ensure that the information you’re reviewing is accurate and up-to-date. This law is in place to protect applicants from losing job opportunities based on incorrect or misleading reports.
If something of concern shows up, you must provide the applicant with a copy of the report and it’s recommended that you give him or her a chance to explain. Regardless of these caveats, the law in no way prohibits you from disqualifying an applicant based on his or her criminal record.
Avoiding Accusations of Discrimination
To avoid violation of Title VII of the Civil Rights Act, you must also take steps to ensure that criminal background checks are not used in a discriminatory manner.
Because incarceration rates tend to be higher among Hispanic and African-American applicants, adopting a blanket policy of disqualifying anyone with a criminal record could be considered discriminatory. Instead, you should adopt a policy of reviewing each situation on a case-by-case basis to determine whether the criminal act in question makes the applicant unsuitable for the position.
Some Final Thoughts
Under the current laws, it makes sense for Florida employers to conduct criminal background checks as part of their hiring process. Having written procedures in place and doing your best to avoid anything that could be construed as discriminatory is always a best practice.
If you come across a situation you’re not sure about, consider consulting your employment attorney before making your final decision. In most cases, an ounce of prevention is worth a pound of cure.