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Background Checks and What Employers Need to Know:

Aside from certain situations where Florida law requires that employees be screened, such as law enforcement officers or those hired to work with children or the elderly, requiring an applicant or employee to submit to a screening is also possible.

When the time comes to make a personnel decision, be it hiring, retention, promotion, and reassignment, an employer may want to consider the backgrounds of applicants and employees. An employer may want to find out about the person’s work history, education, and, more particularly, criminal record. In order to find out a person’s criminal record, a background check is very useful. It is important to know that it is not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.

However, under the laws which are enforced by the Equal Employment Opportunity Commission (EEOC), it is illegal to ask for, or use, a background check for discriminatory purposes- that is, discrimination based on race, color, national origin, sex, or religion, disability, genetic information (including family medical history), and age (40 or older). So, any time an employer uses an applicant’s or employee’s background information to make an employment decision, he must comply with federal laws protecting applicants and employees from discrimination. In addition, when running background checks through a company in the business of compiling background information, compliance with the Fair Credit Reporting Act (FCRA) is required by law, and enforced by The Federal Trade Commission (FTC).

FCRA requirements for obtaining background information through a company in the business of compiling background information:

  • The applicant or employee must be told that the background information might be used for decisions about his or her employment. This notice must be in writing and in a stand-alone format, and cannot be in an employment application. And, though minor additional information may be included with the notice, like a brief description of the nature of consumer reports, such information may not confuse or detract from the notice.
  • The applicant or employee must provide written permission to do the background check, which may be part of the document used to notify the person that the report will be requested.

Adverse Action:

Upon finding unfavorable information, like relevant criminal history, on a person through a background check, an employer is entitled to not hire an applicant or even fire an employee based on that information, as long as such a decision is not based on discrimination. However, taking an adverse action based on background information obtained through a company in the business of compiling such information, the employer is required by the FCRA to:

  • Give the applicant or employee a notice that includes both a copy of the consumer report upon which the adverse decision is based, and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” (which is usually provided by the company in the business of compiling background information).
  • Give the person the notice in advance so that he or she has an opportunity to review the report and explain any negative information.
  • After the adverse employment action is taken, the applicant or employee must be told (orally, in writing, or electronically): that he or she was rejected because of information shown in the report; the name, address, and telephone of the company that sold the report to the employer; that the company selling the report didn’t make the hiring decision, and can’t give specific reasons for it; and that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

If you desire more information about employment termination based on criminal records, please feel free to contact EPGD Attorneys at Law, P.A. Our staff will be glad to assist you and work with your case to achieve the best possible result for you.

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