The FCRA is the federal law that regulates how Consumer Reporting Agencies (CRAs) collect and provide consumer information in relation to employment. It also covers certain requirements on employers before requesting and utilizing employment background check information. As a US federal law, it covers the entire 50 states, including Florida. Thus, Florida employers should comply with it in their hiring practices, along with any applicable local laws. This guide outlines the essential steps Florida employers should take to ensure their employment background checks are compliant and help mitigate the legal risks of noncompliance.
What is FCRA Compliance?
Passed in 1970, the FCRA is the U.S. federal law intended to control how CRAs collect and provide consumer information. Major CRAs, such as Equifax, Experian, and TransUnion, along with background check companies, no matter what size, must follow this law to protect consumer privacy and information accuracy.
In addition, employers must abide by the FCRA when hiring. Remember, the consumer report is the background check report provided by a Consumer Reporting Agency (CRA), an employment background check company.
Depending on the employer’s needs, an employment background check report may include:
- Criminal history
- Credit reports (for financial roles)
- Employment and education verification
- Driving records
- Professional licenses or certifications
- Reference checks or civil judgments
FCRA Requirements for Employment Background Checks
Here is a step-by-step outline of employer duties before, during, and after a background check:
Disclosure and Authorization
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Disclosure
Before conducting a background check on a candidate, the employer must provide a clear, standalone disclosure. It should be a clearly written document, telling the candidate of the plan to run a background check. It can’t be buried in other paperwork.
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Authorization
In addition, the employer must obtain written permission from the candidate. This provides the authorization to conduct the background check.
Pre-Adverse Action Notice
If the background check shows negative information that may affect hiring, the employer must provide the candidate with a Pre-Adverse Action Notice. This notice must include a copy of the consumer report (background check report) and “A Summary of Your Rights Under the FCRA.”
The purpose of this notice is to provide the applicant with an opportunity to review and reflect on the potential negative information and then dispute any inaccuracies. In Florida, the recommended waiting period is typically 5 business days. If the candidate does not challenge the decision, the employer can move to the final step of adverse action. If the candidate challenges, the dispute must be resolved before the employer can make the final decision on whether to onboard the individual or not.
Final Adverse Action Notice
For the Final Adverse Action Notice, the employer should provide the candidate with notice of the adverse decision for non-hire. The notice should include contact details of the CRA or the background screening company, a statement that the CRA did not make the hiring decision, and a reiteration of the right to dispute.
How Florida Employment Laws Interact with the FCRA
Florida employers must follow the federal Fair Credit Reporting Act (FCRA) when conducting background checks through an employment background screening company or consumer reporting agency (CRA).
In addition, Florida has its state laws that offer extra protections for job applicants and employees. They focus on privacy, limit discrimination, and regulate how public records are used in employment decisions.
Complementary to FCRA
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Anti-Discrimination Standards
The Florida Civil Rights Act basically mirrors Title VII of the U.S. Civil Rights Act of 1964, which prohibits discrimination in employment. The Equal Employment Opportunity Commission (EEOC) enforces this provision.
The Florida Civil Rights Act broadens the protection. Like the federal law, it prohibits discrimination based on race, color, religion, sex, national origin, age, and disability. However, it adds marital status as a protected category.
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Due Diligence in Hiring
If an employee commits an intentional tort, such as assaulting someone, the employer may be sued for negligent hiring under federal law. The federal justice system operates under the common law of torts, which makes the employer responsible for not being careful when hiring.
In Florida, an employer is protected under Fla. Stat. §768.096. An employer is presumed not to be negligent if they have conducted a proper background check before hiring the employee.
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Data Protection
Fla. Stat. §501.171 supports FCRA’s confidentiality rules. The employer must protect and secure an employee’s personal information. In case of a security breach, the employer must notify the employee promptly.
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No Statewide Ban-the-Box
Under the federal law, public employers cannot ask or deny candidates for low-level crimes during the early part of the hiring process. However, private employers in Florida are not obliged to follow this except in cities like Miami-Dade, Tampa, and Gainesville.
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Level 1 and Level 2 Screenings
Florida has two levels of background screening. Level 1 is a name-based and state-only check. It searches employment history, state criminal history, and sex offender registry. Level 2 is a fingerprint-based system, which includes checking the Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) databases. This is used for work involving vulnerable populations, security-sensitive roles, or state licensing requirements.
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Disqualifying Offenses
Fla. Stat. §435.04 requires Level 2 screening for those working in high-trust jobs. As mentioned above, Level 2 is mandatory for anyone working with vulnerable populations, in security-sensitive positions, or in jobs that require state licensing.
This law disqualifies candidates with certain convictions, like felonies, abuse, fraud, and financial offenses. These disqualifications apply whether the person was found guilty, entered a plea, or had judgment withheld.
Teaming Up with a Trusted Pre Employment Screening Company
Steering between FCRA and Florida laws can be challenging. Working with a reputable employment background screening company can simplify the process.
Here are the things to look for in a pre employment screening company:
- It must have extensive knowledge of FCRA requirements.
- It must be familiar with the Florida-specific laws.
- It must offer secure, accurate, and legally compliant reporting practices.
Final Thoughts
Navigating between the FCRA and Florida’s unique employment laws is essential. Employers need to build a compliant and trustworthy hiring process. Understanding and following both federal and state requirements can minimize legal risks with compliance and establish a fair hiring environment.
Partnering with a reputable background screening company that is well-versed in FCRA and Florida-specific regulations is the key. It ensures accuracy, security, and legal compliance. Proper background checks not only help protect your organization but also uphold the rights and privacy of every candidate. It supports fairness and integrity in the workplace.
