Are criminal history background screens are on the way out?
On December 15, 2022, the city of Gainesville, Florida, became the first jurisdiction in the state to restrict the use of pre-employment background screens looking into an applicant’s criminal history. Gainesville now joins 37 states and over 150 cities and counties around the country in adopting fair-chance hiring policies. Fifteen states and many local jurisdictions already apply their policies to private employers and/or government contractors. The new law applies to employers with 15 or more employees who have worked primarily in Gainesville for each working day in each of 4 or more calendar weeks in the current or prior calendar year.
The new law has a range of employer-prohibited practices related to job applications and timing of inquiries about criminal history, including the following:
Employers may not publish information about job openings that state or imply that an individual’s criminal history automatically disqualifies them from consideration for the job.
Employers may not inquire about an applicant’s criminal history in a job application.
Employers may not inquire from the applicant or a third party about an arrest or a criminal accusation, other than one relating to domestic violence which:
is not then pending against the applicant or
did not result in a conviction, plead of nolo contendere or deferred adjudication.
Employers may not inquire about or consider an individual’s criminal history unless the employer has first made a conditional offer.
Finally, employers may not refuse to consider employing an applicant due to the individual not providing criminal history information before the individual received a conditional employment offer.
The ordinance, No. 2022-617 for reference, also provides several exemptions including federal or state agencies, childcare facilities, and some tax-exempt entities.
What does this mean for you as an employer doing business in Gainesville?
In essence, before taking adverse action based on an applicant’s criminal history, the employer must inform the applicant of the basis for the decision, provide the applicant with the criminal history records that are leading to the decision, and give the applicant a reasonable opportunity to provide additional information.
If a decision to not hire an applicant for a job is based on their past criminal history, the employer must inform the applicant, in writing, that the adverse action was based on the applicant’s criminal history and that the “notice is being provided in accordance with the City of Gainesville Code of Ordinances, Chapter 14.5, Section 14.5-181, which regulates the process and timing of criminal background checks conducted on job applicants.
Employers with operations in Gainesville should review their employment applications and job postings and remove any questions about or references to criminal history.
Additionally, we see this type of legislation spreading to other parts of the states and country, and employers in general should be reconsidering the use of an applicant's criminal history when making hiring decisions.
The full text of the ordinance can be found HERE.
