['Recruiting and hiring']
['Negligent Hiring / Retention']
07/17/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Florida, an employer/former employer may disclose information about employee/former employee to a prospective employer upon request, unless the information is knowingly false or violates a civil right. An employer/former employer may be liable for disclosures that are knowingly false or violate a civil right.
A person may provide employment information to a financial institution or financial institution regulatory agency, unless the information is false and provided recklessly.
An employer must disclose “employment information” as defined by Florida Statute 943.134 to any authorized law enforcement, correctional, or probation officer who requests such information about a person for employment purposes.
Two or more people may not take actions in order to prevent another person from obtaining or keeping employment.
An employer/former employer may share personnel files, including those containing disciplinary actions and termination reasons, unless the records are falsified maliciously.
Arrest record inquiries
Both the EEOC and Florida have no laws or regulations specifically prohibiting arrest record inquiries. However, the EEOC’s Notice N-915-061 says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Florida state agencies and municipalities may not disqualify a person from employment solely because of a conviction, unless the crime directly relates to the job and the crime was a felony or first degree misdemeanor. These restrictions do not apply to law enforcement, correctional agencies, fire departments, nor county/municipalities hiring personnel critical to security or public safety.
Applicants convicted of drug offenses are disqualified from applying for employment with Florida agencies, unless the applicant has completed all sentences or sanctions, sought evaluation and enrollment in a drug treatment rehabilitation program if necessary, and submits to periodic urine drug testing.
Both the EEOC and Florida have no laws or regulations specifically prohibiting conviction record inquiries for private employers. However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought
State
Contacts
Employer immunity from disclosure claims
Florida Agency for Workforce Innovation
Florida Commission on Human Relations
Florida Department of Financial Services
Arrest record inquiries
Florida Commission on Human Relations
Florida Agency for Workforce Innovation Office for Civil Rights
Conviction record inquiries
Florida Commission on Human Relations
Florida Agency for Workforce Innovation Office for Civil Rights
Regulations
Employer immunity from disclosure claims
Florida Statute 435.10, Sharing of personnel information among employers
www.flsenate.gov/Laws/Statutes/2010/435.10
Florida Statute 655.51, Employment information
www.flsenate.gov/Laws/Statutes/2010/655.51
Florida Statute 768.095, Employer immunity from liability; Disclosure of information regarding former and current employees
www.flsenate.gov/Laws/Statutes/2010/768.095
Florida Statute 768.096, Employer presumption against negligent hiring
www.flsenate.gov/Laws/Statutes/2010/768.096
Florida Statute 943.134, Release of employee information by employers
www.flsenate.gov/Laws/Statutes/2010/943.134
Arrest record inquiries
None
Conviction record inquiries
Florida Statute 112.011, Felons; removal of disqualifications for employment, exceptions
www.flsenate.gov/Laws/Statutes/2010/112.011
Florida Statute 775.16, Drug offenses; additional penalties
www.flsenate.gov/Laws/Statutes/2010/775.16
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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