Bill Text: FL S1026 | 2021 | Regular Session | Introduced


Bill Title: Background Screening

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2021-04-30 - Died in Criminal Justice [S1026 Detail]

Download: Florida-2021-S1026-Introduced.html
       Florida Senate - 2021                                    SB 1026
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00223A-21                                          20211026__
    1                        A bill to be entitled                      
    2         An act relating to background screening; creating s.
    3         435.13, F.S.; defining the term “entity”; prohibiting
    4         certain entities that contract for inmate labor from
    5         excluding certain persons from consideration for
    6         employment or from disqualifying certain persons from
    7         employment; specifying conditions that constitute
    8         exclusion from consideration for employment;
    9         prohibiting an entity from inquiring into or
   10         considering an applicant’s criminal history before the
   11         applicant has received a conditional offer of
   12         employment; prohibiting an entity from considering
   13         specified information in connection with an
   14         application for employment; requiring an entity to
   15         consider specified factors when determining whether an
   16         applicant may be disqualified from employment;
   17         requiring an entity to provide specified information
   18         to an applicant the entity intends to disqualify from
   19         employment for an offense that directly relates to the
   20         employment position; specifying how an applicant may
   21         establish evidence of mitigation or rehabilitation;
   22         providing requirements relating to establishing such
   23         evidence; providing requirements for making a final
   24         employment decision; requiring entities to retain
   25         certain records for a specified time period and to
   26         make the records available to the Department of
   27         Economic Opportunity upon request; providing a
   28         presumption relating to recordkeeping; authorizing
   29         certain persons to contact the department; requiring
   30         the department to keep a record of such contact and to
   31         investigate and review any complaints; providing
   32         policy relating to contracts for inmate labor;
   33         requiring the department to periodically review
   34         background check policies; requiring that background
   35         check policies and practices be considered among the
   36         performance criteria in evaluating a contract for
   37         inmate labor; providing a civil penalty; providing
   38         applicability; requiring the department to enforce the
   39         act; providing an effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 435.13, Florida Statutes, is created to
   44  read:
   45         435.13Employment practices for entities that contract for
   46  inmate labor.—
   47         (1)As used in this section, the term “entity” means an
   48  entity that contracts with the Department of Corrections under
   49  s. 944.10(7) or under chapter 946.
   50         (2)An entity may not exclude a person from consideration
   51  for employment or disqualify a person from employment solely or
   52  in part because he or she has been found guilty of, regardless
   53  of adjudication, or entered a plea of nolo contendere or guilty
   54  to, or has been adjudicated delinquent and the record has not
   55  been sealed or expunged for, any offense that is not directly
   56  related to the employment position sought. Conditions that
   57  constitute exclusion from consideration for employment include:
   58         (a)Requiring the applicant to disclose on his or her
   59  employment application whether he or she has been found guilty
   60  of, regardless of adjudication, or entered a plea of nolo
   61  contendere or guilty to, or has been adjudicated delinquent and
   62  the record has not been sealed or expunged for, any offense; or
   63         (b)Before making a conditional offer of employment:
   64         1.Making a verbal or written inquiry to the applicant as
   65  to whether he or she has been found guilty of, regardless of
   66  adjudication, or entered a plea of nolo contendere or guilty to,
   67  or has been adjudicated delinquent and the record has not been
   68  sealed or expunged for, any offense; or
   69         2.Making any provision that suggests that the applicant
   70  self-report or voluntarily disclose background check
   71  information.
   72         (3)An entity may not inquire into or consider an
   73  applicant’s criminal history before the applicant has received a
   74  conditional offer of employment. An entity may not consider any
   75  of the following in connection with an application for
   76  employment:
   77         (a)An arrest not followed by a conviction.
   78         (b)A conviction that has been sealed, dismissed, or
   79  expunged.
   80         (c)An infraction or a misdemeanor conviction for which a
   81  jail sentence may not be imposed.
   82         (4)When determining if an applicant may be disqualified
   83  from employment due to an offense that directly relates to the
   84  employment position, all of the following factors must be
   85  considered:
   86         (a)Whether the offense is directly related to the duties
   87  and responsibilities of the employment position or occupation.
   88         (b)Whether the employment position or occupation offers
   89  the opportunity for the same or a similar offense to occur.
   90         (c)Whether the circumstances leading to the conduct for
   91  which the person was adjudicated will recur in the employment
   92  position or occupation.
   93         (d)The length of time since the offense occurred.
   94         (5) If an entity intends to disqualify an applicant from
   95  employment because of an applicant’s prior conviction, the
   96  entity must provide written notice to the applicant of all of
   97  the following before notifying the applicant of the entity’s
   98  final decision:
   99         (a)The conviction that is the basis for the potential
  100  disqualification.
  101         (b)A copy of the applicant’s conviction history report, if
  102  any.
  103         (c)Examples of mitigation or rehabilitation evidence the
  104  applicant may provide to the entity.
  105         (6)An applicant convicted of an offense that directly
  106  relates to the employment position may not be disqualified from
  107  employment if the applicant can show evidence of mitigation or
  108  rehabilitation and present fitness to perform the duties of the
  109  employment position. Evidence of mitigation or rehabilitation
  110  may be established by doing any of the following:
  111         (a)Providing proof of no subsequent convictions since
  112  release and compliance with terms and conditions of probation or
  113  parole, if any.
  114         (b)Providing other types of evidence of mitigation or
  115  rehabilitation, including, but not limited to, letters of
  116  reference.
  117         (7)An applicant has 10 business days to respond after
  118  notice is given pursuant to subsection (5) and to rebut the
  119  basis for the potential disqualification, including, but not
  120  limited to, challenging the accuracy of any information in the
  121  notice or submitting mitigation or rehabilitation evidence. The
  122  entity must hold the employment position vacant until the entity
  123  makes a final employment decision based on an individualized
  124  assessment of the information submitted by the applicant in his
  125  or her response and any guidance from the federal Equal
  126  Employment Opportunity Commission on the consideration of arrest
  127  and conviction records in employment decisions.
  128         (8)If an entity disqualifies an applicant from employment
  129  because of the applicant’s prior conviction, the entity must
  130  provide written notification to the applicant of all of the
  131  following:
  132         (a)The disqualification.
  133         (b)Information on how to appeal the disqualification.
  134         (c)A statement that the applicant may be eligible for
  135  other employment.
  136         (d)The earliest date the applicant may reapply for an
  137  employment position with the entity.
  138         (9)(a)An entity shall maintain a record of:
  139         1.The number of employment positions requiring background
  140  checks, the number of applicants for each position, the number
  141  of applicants who were provided a conditional offer for each
  142  position; the number of applicants who were hired; and
  143         2.The number of applicants who
  144         a.Had a criminal history;
  145         b.Were provided with notice pursuant to subsection (5);
  146         c.Provided evidence of mitigation or rehabilitation; and
  147         d.Were provided a final adverse notice; and
  148         (b)The entity shall retain application forms, records of
  149  employment, and other pertinent data and records required under
  150  this section, including, but not limited to, communications with
  151  the applicant, for a minimum of 3 years. The entity must allow
  152  the Department of Economic Opportunity to access such data and
  153  records upon request.
  154         (10)If an entity does not maintain or retain adequate data
  155  records documenting compliance with this section or does not
  156  allow the Department of Economic Opportunity reasonable access
  157  to such records, it shall be presumed, absent clear and
  158  convincing evidence otherwise, that the entity did not comply
  159  with this section.
  160         (11)Any person who is aggrieved by an entity’s violation
  161  of this section may contact the Department of Economic
  162  Opportunity and report any problems, concerns, or suggestions
  163  regarding compliance with or the implementation or impact of
  164  this section. The department shall keep a record of all such
  165  contact and shall investigate and review any complaints.
  166         (12)(a)It shall be the policy of the state to enter into
  167  contracts for inmate labor only with entities that have adopted
  168  and employ written policies, practices, and standards that are
  169  consistent with the requirements of this section.
  170         (b)The Department of Economic Opportunity shall
  171  periodically review entities’ background check policies for
  172  compliance with this section. Background check policies and
  173  practices shall be considered among the performance criteria in
  174  evaluating a contract for inmate labor.
  175         (13)An entity that violates this section is subject to a
  176  civil penalty of not more than $5,000 for each violation.
  177         (14)This section does not apply:
  178         (a)If federal, state, or local law, including
  179  corresponding rules and regulations, requires the consideration
  180  of a person’s criminal history;
  181         (b)To a law enforcement agency;
  182         (c)To a governmental entity within the criminal justice
  183  system; or
  184         (d)To a governmental entity seeking an employee for a
  185  volunteer position.
  186         (15)The Department of Economic Opportunity shall enforce
  187  this section.
  188         Section 2. This act shall take effect July 1, 2021.

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