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Another body of employment practices, besides the FCRA’s requirements for equality based on nationality, race, gender, and religion, seeks to give people a fair chance at employment based on skills and character and without consideration for criminal histories, while creating a safe work environment for both employees and management.
Over 70 million people in the U.S. have criminal records that can hinder their employment prospects or job retention, even after they have paid their debts to society.
To correct this, over 150 municipalities and 33 states have passed “fair chance hiring” laws since 2009, sometimes known as “fair-chance” and “ban the box” or ban-the-box laws. and the number increases every year. Today, better than three-fourths of the U.S. population lives in a fair-chance jurisdiction.1
The leading cities in this labor law movement and who are providing the best models for others are San Francisco (Fair Chance Ordinance in 2014), New York City (NYC Fair Chance Act of 2015) and Los Angeles (Fair Chance Initiative for Hiring in 2017).
According to the National Employment Law Project (NELP), a good number of jurisdictions in the U.S. have adopted fair-chance laws that extend beyond the public sector to private employers as well. But no Florida municipality has gone that far yet. The State of Florida itself still has no fair-chance law but individual jurisdictions have acted on their own. One city, Jacksonville, extends its fair-chance process requirement to its contractors as well. Here is a list of Florida cities and counties that have adopted fair-chance policies:
CITY/COUNTY
COVERAGE
Clearwater
City covers public employees
Daytona Beach
City covers public employees
Fort Myers
City covers public employees
Gainesville
City covers public employees
Jacksonville
City covers public employees and private contractors
Orlando
City covers public employees
Pompano Beach
City covers public employees
Sarasota
City covers public employees
Saint Petersburg
City covers public employees
Tampa
City covers public employees
Tallahassee
City covers public employees
Broward County
County covers public employees
Miami-Dade County
County covers public employees
Palm Beach County
County covers public employees
Adapted from NELP website illustrations.
Ban-the-box policies specifically prohibit employment ads that infer that no felons should apply, or ban employment application forms that contain a check box asking if any arrests or convictions are in the applicant’s past.
Fair-chance laws aim to prohibit employers from asking questions about an applicant’s criminal history before or during a job interview. This gives former offenders a chance to have their qualifications and character considered so that the history alone does not prejudice an employer’s decision to hire.
Although the ordinances and statutes by the different myriad jurisdictions vary, the typical hiring process required by these laws has most or all of the following features:
1. Employers may not ask an applicant about his/her criminal history or conduct any background checks until after a candidate’s qualifications and character have been vetted and considered.
2. Criminal history checks may be conducted only after a candidate has been tentatively selected, or at least is among the short list of candidates for a position. Some jurisdictions require that a qualified candidate be given a conditional offer of employment pending the successful completion of a background check—before a background check is started.
3. If a background check then turns up convictions or imprisonment, an employer may be required to consider if the criminal history is relevant and conflicts with the position being filled.
4. If an employer rescinds a conditional job offer on the basis of a background check the employer is required to provide the candidate a written explanation as to why the background check results conflict with the prospective position.
5. In the event of a rescission of offer, the employer may be required to give the applicant an opportunity to correct any inaccuracies that may exist in the background check report before making a final decision to deny the applicant the position.
If these principles in fair-chance laws sound familiar it’s because they are very similar to the FCRA requirements. The laws compliment each other. In fact, note that our recommended “
FCRA-Compliant Onboarding Model” illustration follows these principles.
On the flip side of the same coin, “safe hiring” or safe-hiring, means using tools, skills and knowledge to perform the necessary “due diligence” to keep unqualified persons out of a workplace in order to protect the employer, co-workers and the public. And putting all of these together and using them in a coordinated and consistent way is a “safe hiring program” (SHP).2
Conversely, the failure to practice safe hiring can result in “negligent hiring” and “negligent retention,” legal concepts that too often find their way into courtrooms and can result in costly consequences.
Negligent hiring is the responsibility an employer may have if an employee causes harm to others in the workplace. For example, an incident of violence in the workplace perpetrated by an employee may be avoided if the person’s existing violent history had been discovered through a background check and had been kept from being hired, and thus potential violence averted. Conversely, if that same person with a history of violence is hired because the employer does not perform a criminal history check, and the employee causes harm to another, the employer may be found negligent in the hiring and be responsible for damages.
Using the Florida Court of Appeals’ own definition, it held that negligent hiring “occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness, and the issue of liability primarily focuses upon the adequacy of the employer’s pre-employment investigation into the employee’s background.”
Like negligent hiring, the concept of negligent retention is an employer’s failure to continue due diligence after the hire, and an employee harms others in the workplace. This does not mean that the employer is always responsible for an employee’s harmful actions, but it does mean that the employer needs to stay tuned to employees’ behaviors, to respond appropriately to problems or transgressions, and to periodically conduct new background checks (usually every five years) after the hire to assure that employees’ behavior outside the workplace does not spill into the workplace.
“...‘safe hiring’ means using tools, skills and knowledge to perform the necessary ‘due diligence’ to keep unqualified persons out of a workplace in order to protect the employer, co-workers and the public... Conversely, the failure to practice safe hiring can result in ‘negligent hiring.’”
Depending on the type of business, another key element in a safe hiring program is periodic drug testing. This is particularly important for workers in healthcare and transportation, or in industries where equipment or processes are particularly hazardous, like construction.
Again using the Florida Court of Appeals’ definition, negligent retention “occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.”
If managing an organization’s human resources before and after a hire sounds to you like a balancing act between a consumer’s (an applicant’s or incumbent’s) FCRA rights and the organization’s responsibility to its members and the public—you are right. It is a balancing act, and the answer is to perform reasonable due diligence before and after onboarding people into your area of control.
Reasonable due diligence is mostly the performance of background checks within a safe hiring program before hiring, continuing a vigilance through periodic re-investigations (and drug testing when appropriate), and responding appropriately to findings, observations or complaints to assist, reassign or discharge problem employees.
There are arguments for and against digging up derogatory information. On the one hand you will seek to know what potentially harmful information exists about a subject as its absence, if it was available, can be interpreted as negligence. And on the other hand, you can be faulted for having knowledge of derogatory information even if you do not base a decision on it. “You’re damned if you do, and you’re damned if you don’t.”
Not knowing information you should know. Florida tort law sets a presumption against negligent hiring3 when the employer conducts a proper background investigation of applicants or incumbent employees. The “presumption against” means that an employer who conducts a “proper” background investigation—one that includes criminal history checks—and hires because no history is discovered of behavior that would endanger others, is presumed to be free of responsibility if that employee harms another in the workplace or in the course of business.
The same principle—that performing due diligence of a prospective tenant—may protect the property owner or property manager from responsibility should the tenant harm another on their property.
The presumed protection against negligent hiring is a very good reason for employers and property managers to assure that “proper” FCRA-compliant background investigations are conducted of their employees and tenants.
Knowing information you should not use. The other side of that argument protects your organization by keeping negative information about a subject from the decision maker when the law prohibits its use. Thus, a safe hiring program is wise to use a CRA to assure that only legally permissible information is seen by your organization for making employment or tenancy decisions.
Sooner or later you may face a lawsuit for wrongful denial or termination from someone who was denied a job or housing or who was dismissed for cause, based on their belief or false claim that you acted on information you should not have used. If that information is in your system it will be discovered and it will bolster their claim, whether or not you used it in making your decision. If your FCRA-compliant CRA vendor filtered prohibited information out of its report to your organization you will have a valid defense against the claim.
“Florida [law] … sets a presumption against negligent hiring [so] an employer who conducts a ‘proper’ background investigation—one that includes criminal history checks—and hires because no history is discovered of behavior that would endanger others, is presumed to be free of responsibility if that employee harms another in the workplace or in the course of business.”
1 The National Employment Law Project (NELP) provides an excellent interactive map at their website at https://www.nelp.org/campaign/ensuring-fair-chance-to-work/ of the U.S. states and local jurisdictions that have fair-chance/ban-the-box policies and laws.
2 Rosen, Lester S. The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists, and Impostors Out of Your Workplace. Tempe, Arizona: Facts On Demand Press, 2004.
3 Florida Statutes, Title XLV, Torts, Chapter 768, Negligence, Section 096, Employer presumption against negligent hiring.
Know Your Customers & Crew
