| TITLE XXXI
LABOR
CHAPTER 435
EMPLOYMENT SCREENING
435.01 Applicability of this chapter.
435.02 Definitions.
435.03 Level 1 screening standards.
435.04 Level 2 screening standards.
435.05 Requirements for covered employees.
435.06 Exclusion from employment.
435.07 Exemptions from disqualification.
435.08 Payment for processing of fingerprints and state
criminal records checks.
435.09 Confidentiality of personnel background check
information.
435.10 Sharing of personnel information among employers.
435.11 Penalties.
435.01 Applicability of this chapter.--Whenever a
background screening for employment or a background security check
is required by law for employment, unless otherwise provided by
law, the provisions of this chapter shall apply.
History.--s. 47, ch. 95-228.
435.02 Definitions.--For the purposes of this chapter:
(1) "Employee" means any person required by law to be screened
pursuant to the provisions of this chapter.
(2) "Employer" means any person or entity required by law to
conduct screening of employees pursuant to this chapter.
(3) "Licensing agency" means any state or county agency which
grants licenses or registration permitting the operation of an
employer or is itself an employer. When there is no state
licensing agency or the county licensing agency chooses not to
conduct employment screening, "licensing agency" means the
Department of Children and Family Services.
History.--s. 47, ch. 95-228; s. 207, ch. 99-8.
435.03 Level 1 screening standards.--
(1) All employees required by law to be screened shall be
required to undergo background screening as a condition of
employment and continued employment. For the purposes of this
subsection, level 1 screenings shall include, but not be limited
to, employment history checks and statewide criminal
correspondence checks through the Florida Department of Law
Enforcement, and may include local criminal records checks through
local law enforcement agencies.
(2) Any person for whom employment screening is required by
statute must not have been found guilty of, regardless of
adjudication, or entered a plea of nolo contendere or guilty to,
any offense prohibited under any of the following provisions of
the Florida Statutes or under any similar statute of another
jurisdiction:
(a) Section 393.135, relating to sexual misconduct with
certain developmentally disabled clients and reporting of such
sexual misconduct.
(b) Section 394.4593, relating to sexual misconduct with
certain mental health patients and reporting of such sexual
misconduct.
(c) Section 415.111, relating to abuse, neglect, or
exploitation of a vulnerable adult.
(d) Section 782.04, relating to murder.
(e) Section 782.07, relating to manslaughter, aggravated
manslaughter of an elderly person or disabled adult, or aggravated
manslaughter of a child.
(f) Section 782.071, relating to vehicular homicide.
(g) Section 782.09, relating to killing of an unborn quick
child by injury to the mother.
(h) Section 784.011, relating to assault, if the victim of the
offense was a minor.
(i) Section 784.021, relating to aggravated assault.
(j) Section 784.03, relating to battery, if the victim of the
offense was a minor.
(k) Section 784.045, relating to aggravated battery.
(l) Section 787.01, relating to kidnapping.
(m) Section 787.02, relating to false imprisonment.
(n) Section 794.011, relating to sexual battery.
(o) Former s. 794.041, relating to prohibited acts of persons
in familial or custodial authority.
(p) Chapter 796, relating to prostitution.
(q) Section 798.02, relating to lewd and lascivious behavior.
(r) Chapter 800, relating to lewdness and indecent exposure.
(s) Section 806.01, relating to arson.
(t) Chapter 812, relating to theft, robbery, and related
crimes, if the offense was a felony.
(u) Section 817.563, relating to fraudulent sale of controlled
substances, only if the offense was a felony.
(v) Section 825.102, relating to abuse, aggravated abuse, or
neglect of an elderly person or disabled adult.
(w) Section 825.1025, relating to lewd or lascivious offenses
committed upon or in the presence of an elderly person or disabled
adult.
(x) Section 825.103, relating to exploitation of an elderly
person or disabled adult, if the offense was a felony.
(y) Section 826.04, relating to incest.
(z) Section 827.03, relating to child abuse, aggravated child
abuse, or neglect of a child.
(aa) Section 827.04, relating to contributing to the
delinquency or dependency of a child.
(bb) Former s. 827.05, relating to negligent treatment of
children.
(cc) Section 827.071, relating to sexual performance by a
child.
(dd) Chapter 847, relating to obscene literature.
(ee) Chapter 893, relating to drug abuse prevention and
control, only if the offense was a felony or if any other person
involved in the offense was a minor.
(ff) Section 916.1075, relating to sexual misconduct with
certain forensic clients and reporting of such sexual misconduct.
(3) Standards must also ensure that the person:
(a) For employees and employers licensed or registered
pursuant to chapter 400 or chapter 429, and for employees and
employers of developmental disabilities centers as defined in s.
393.063, intermediate care facilities for the developmentally
disabled as defined in s. 400.960, and mental health treatment
facilities as defined in s. 394.455, meets the requirements of
this chapter.
(b) Has not committed an act that constitutes domestic
violence as defined in s. 741.28.
History.--s. 47, ch. 95-228; s. 15, ch. 96-268; s. 21,
ch. 96-322; s. 3, ch. 98-417; s. 87, ch. 2000-153; s. 45, ch.
2000-349; s. 62, ch. 2001-62; s. 50, ch. 2003-1; s. 4, ch.
2004-267; s. 3, ch. 2005-119; s. 89, ch. 2006-197; s. 61, ch.
2006-227; s. 109, ch. 2007-5; s. 16, ch. 2008-244.
435.04 Level 2 screening standards.--
(1) All employees in positions designated by law as positions
of trust or responsibility shall be required to undergo security
background investigations as a condition of employment and
continued employment. For the purposes of this subsection,
security background investigations shall include, but not be
limited to, fingerprinting for all purposes and checks in this
subsection, statewide criminal and juvenile records checks through
the Florida Department of Law Enforcement, and federal criminal
records checks through the Federal Bureau of Investigation, and
may include local criminal records checks through local law
enforcement agencies.
(2) The security background investigations under this section
must ensure that no persons subject to the provisions of this
section have been found guilty of, regardless of adjudication, or
entered a plea of nolo contendere or guilty to, any offense
prohibited under any of the following provisions of the Florida
Statutes or under any similar statute of another jurisdiction:
(a) Section 393.135, relating to sexual misconduct with
certain developmentally disabled clients and reporting of such
sexual misconduct.
(b) Section 394.4593, relating to sexual misconduct with
certain mental health patients and reporting of such sexual
misconduct.
(c) Section 415.111, relating to adult abuse, neglect, or
exploitation of aged persons or disabled adults.
(d) Section 782.04, relating to murder.
(e) Section 782.07, relating to manslaughter, aggravated
manslaughter of an elderly person or disabled adult, or aggravated
manslaughter of a child.
(f) Section 782.071, relating to vehicular homicide.
(g) Section 782.09, relating to killing of an unborn quick
child by injury to the mother.
(h) Section 784.011, relating to assault, if the victim of the
offense was a minor.
(i) Section 784.021, relating to aggravated assault.
(j) Section 784.03, relating to battery, if the victim of the
offense was a minor.
(k) Section 784.045, relating to aggravated battery.
(l) Section 784.075, relating to battery on a detention or
commitment facility staff.
(m) Section 787.01, relating to kidnapping.
(n) Section 787.02, relating to false imprisonment.
(o) Section 787.04(2), relating to taking, enticing, or
removing a child beyond the state limits with criminal intent
pending custody proceedings.
(p) Section 787.04(3), relating to carrying a child beyond the
state lines with criminal intent to avoid producing a child at a
custody hearing or delivering the child to the designated person.
(q) Section 790.115(1), relating to exhibiting firearms or
weapons within 1,000 feet of a school.
(r) Section 790.115(2)(b), relating to possessing an electric
weapon or device, destructive device, or other weapon on school
property.
(s) Section 794.011, relating to sexual battery.
(t) Former s. 794.041, relating to prohibited acts of persons
in familial or custodial authority.
(u) Chapter 796, relating to prostitution.
(v) Section 798.02, relating to lewd and lascivious behavior.
(w) Chapter 800, relating to lewdness and indecent exposure.
(x) Section 806.01, relating to arson.
(y) Chapter 812, relating to theft, robbery, and related
crimes, if the offense is a felony.
(z) Section 817.563, relating to fraudulent sale of controlled
substances, only if the offense was a felony.
(aa) Section 825.102, relating to abuse, aggravated abuse, or
neglect of an elderly person or disabled adult.
(bb) Section 825.1025, relating to lewd or lascivious offenses
committed upon or in the presence of an elderly person or disabled
adult.
(cc) Section 825.103, relating to exploitation of an elderly
person or disabled adult, if the offense was a felony.
(dd) Section 826.04, relating to incest.
(ee) Section 827.03, relating to child abuse, aggravated child
abuse, or neglect of a child.
(ff) Section 827.04, relating to contributing to the
delinquency or dependency of a child.
(gg) Former s. 827.05, relating to negligent treatment of
children.
(hh) Section 827.071, relating to sexual performance by a
child.
(ii) Section 843.01, relating to resisting arrest with
violence.
(jj) Section 843.025, relating to depriving a law enforcement,
correctional, or correctional probation officer means of
protection or communication.
(kk) Section 843.12, relating to aiding in an escape.
(ll) Section 843.13, relating to aiding in the escape of
juvenile inmates in correctional institutions.
(mm) Chapter 847, relating to obscene literature.
(nn) Section 874.05(1), relating to encouraging or recruiting
another to join a criminal gang.
(oo) Chapter 893, relating to drug abuse prevention and
control, only if the offense was a felony or if any other person
involved in the offense was a minor.
(pp) Section 916.1075, relating to sexual misconduct with
certain forensic clients and reporting of such sexual misconduct.
(qq) Section 944.35(3), relating to inflicting cruel or
inhuman treatment on an inmate resulting in great bodily harm.
(rr) Section 944.46, relating to harboring, concealing, or
aiding an escaped prisoner.
(ss) Section 944.47, relating to introduction of contraband
into a correctional facility.
(tt) Section 985.701, relating to sexual misconduct in
juvenile justice programs.
(uu) Section 985.711, relating to contraband introduced into
detention facilities.
(3) The security background investigations conducted under
this section for employees of the Department of Juvenile Justice
must ensure that no persons subject to the provisions of this
section have been found guilty of, regardless of adjudication, or
entered a plea of nolo contendere or guilty to, any offense
prohibited under any of the following provisions of the Florida
Statutes or under any similar statute of another jurisdiction:
(a) Section 784.07, relating to assault or battery of law
enforcement officers, firefighters, emergency medical care
providers, public transit employees or agents, or other specified
officers.
(b) Section 810.02, relating to burglary, if the offense is a
felony.
(c) Section 944.40, relating to escape.
The Department of Juvenile Justice may not remove a
disqualification from employment or grant an exemption to any
person who is disqualified under this section for any offense
disposed of during the most recent 7-year period.
(4) Standards must also ensure that the person:
(a) For employees or employers licensed or registered pursuant
to chapter 400 or chapter 429, does not have a confirmed report of
abuse, neglect, or exploitation as defined in 1s.
415.102(6), which has been uncontested or upheld under s. 415.103.
(b) Has not committed an act that constitutes domestic
violence as defined in s. 741.30.
(5) Under penalty of perjury, all employees in such positions
of trust or responsibility shall attest to meeting the
requirements for qualifying for employment and agreeing to inform
the employer immediately if convicted of any of the disqualifying
offenses while employed by the employer. Each employer of
employees in such positions of trust or responsibilities which is
licensed or registered by a state agency shall submit to the
licensing agency annually, under penalty of perjury, an affidavit
of compliance with the provisions of this section.
History.--s. 47, ch. 95-228; s. 16, ch. 96-268; s. 22,
ch. 96-322; s. 4, ch. 98-417; s. 5, ch. 99-284; s. 88, ch.
2000-153; s. 7, ch. 2001-125; s. 5, ch. 2004-267; s. 4, ch.
2005-119; s. 111, ch. 2006-120; s. 90, ch. 2006-197; s. 110, ch.
2007-5; s. 3, ch. 2007-112.
1Note.--Repealed by s. 26, ch. 2000-349.
435.05 Requirements for covered employees.--Except as
otherwise provided by law, the following requirements shall apply
to covered employees:
(1)(a) Every person employed in a position for which
employment screening is required must, within 5 working days after
starting to work, submit to the employer a complete set of
information necessary to conduct a screening under this section.
(b) For level 1 screening, the employer must submit the
information necessary for screening to the Florida Department of
Law Enforcement within 5 working days after receiving it. The
Florida Department of Law Enforcement will conduct a search of its
records and will respond to the employer agency. The employer will
inform the employee whether screening has revealed any
disqualifying information.
(c) For level 2 screening, the employer or licensing agency
must submit the information necessary for screening to the Florida
Department of Law Enforcement within 5 working days after
receiving it. The Florida Department of Law Enforcement will
conduct a search of its criminal and juvenile records and will
request that the Federal Bureau of Investigation conduct a search
of its records for each employee for whom the request is made. The
Florida Department of Law Enforcement will respond to the employer
or licensing agency, and the employer or licensing agency will
inform the employee whether screening has revealed disqualifying
information.
(d) The person whose background is being checked must supply
any missing criminal or other necessary information to the
employer within 30 days after the employer makes a request for the
information or be subject to automatic disqualification.
(2) Unless otherwise prohibited by state or federal law, new
employees may be placed on probationary status pending a
determination of compliance with minimum standards set forth in
this chapter.
(3) Each employer required to conduct level 2 background
screening must sign an affidavit annually, under penalty of
perjury, stating that all covered employees have been screened or
are newly hired and are awaiting the results of the required
screening checks.
History.--s. 47, ch. 95-228; s. 208, ch. 99-8; s. 46,
ch. 2000-349; s. 63, ch. 2001-62; s. 21, ch. 2004-267.
435.06 Exclusion from employment.--
(1) When an employer or licensing agency has reasonable cause
to believe that grounds exist for the denial or termination of
employment of any employee as a result of background screening, it
shall notify the employee in writing, stating the specific record
which indicates noncompliance with the standards in this section.
It shall be the responsibility of the affected employee to contest
his or her disqualification or to request exemption from
disqualification. The only basis for contesting the
disqualification shall be proof of mistaken identity.
(2) The employer must either terminate the employment of any
of its personnel found to be in noncompliance with the minimum
standards for good moral character contained in this section or
place the employee in a position for which background screening is
not required unless the employee is granted an exemption from
disqualification pursuant to s. 435.07.
(3) Any person who is required to undergo employment screening
and who refuses to cooperate in such screening or refuses to
submit the information necessary to complete the screening,
including fingerprints when required, shall be disqualified for
employment in such position or, if employed, shall be dismissed.
History.--s. 47, ch. 95-228.
435.07 Exemptions from disqualification.--Unless
otherwise provided by law, the provisions of this section shall
apply to exemptions from disqualification.
(1) The appropriate licensing agency may grant to any employee
otherwise disqualified from employment an exemption from
disqualification for:
(a) Felonies committed more than 3 years prior to the date of
disqualification;
(b) Misdemeanors prohibited under any of the Florida Statutes
cited in this chapter or under similar statutes of other
jurisdictions;
(c) Offenses that were felonies when committed but are now
misdemeanors;
(d) Findings of delinquency; or
(e) Commissions of acts of domestic violence as defined in s.
741.30.
For the purposes of this subsection, the term "felonies" means
both felonies prohibited under any of the Florida Statutes cited
in this chapter or under similar statutes of other jurisdictions.
(2) Persons employed by treatment providers who treat
adolescents 13 years of age and older who are disqualified from
employment solely because of crimes under s. 817.563, s. 893.13,
or s. 893.147 may be exempted from disqualification from
employment pursuant to this section without the 3-year waiting
period.
(3) In order for a licensing department to grant an exemption
to any employee, the employee must demonstrate by clear and
convincing evidence that the employee should not be disqualified
from employment. Employees seeking an exemption have the burden of
setting forth sufficient evidence of rehabilitation, including,
but not limited to, the circumstances surrounding the criminal
incident for which an exemption is sought, the time period that
has elapsed since the incident, the nature of the harm caused to
the victim, and the history of the employee since the incident, or
any other evidence or circumstances indicating that the employee
will not present a danger if continued employment is allowed. The
decision of the licensing department regarding an exemption may be
contested through the hearing procedures set forth in chapter 120.
(4) Disqualification from employment under subsection (1) may
not be removed from, nor may an exemption be granted to, any
personnel who is found guilty of, regardless of adjudication, or
who has entered a plea of nolo contendere or guilty to, any felony
covered by s. 435.03 solely by reason of any pardon, executive
clemency, or restoration of civil rights.
(5) Exemptions granted by one licensing agency shall be
considered by subsequent licensing agencies, but are not binding
on the subsequent licensing agency.
History.--s. 47, ch. 95-228; s. 47, ch. 2000-349; s. 64,
ch. 2001-62; s. 29, ch. 2004-267; s. 9, ch. 2005-128.
435.08 Payment for processing of fingerprints and state
criminal records checks.--Either the employer or the employee
is responsible for paying the costs of screening. Payment shall be
submitted to the Florida Department of Law Enforcement with the
request for screening.
History.--s. 47, ch. 95-228; s. 209, ch. 99-8; s. 48,
ch. 2000-349.
435.09 Confidentiality of personnel background check
information.--No criminal or juvenile information obtained
under this section may be used for any purpose other than
determining whether persons meet the minimum standards for
employment or for an owner or director of a covered service
provider. The criminal records and juvenile records obtained by
the department or by an employer are exempt from s. 119.07(1).
History.--s. 47, ch. 95-228; s. 282, ch. 96-406; s. 49,
ch. 2000-349.
435.10 Sharing of personnel information among employers.--Every
employer of employees covered by this chapter shall furnish copies
of personnel records for employees or former employees to any
other employer requesting this information pursuant to this
section. Information contained in the records may include, but is
not limited to, disciplinary matters and any reason for
termination. Any employer releasing such records pursuant to this
chapter shall be considered to be acting in good faith and may not
be held liable for information contained in such records, absent a
showing that the employer maliciously falsified such records.
History.--s. 47, ch. 95-228.
435.11 Penalties.--
(1) It is a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083, for any person willfully,
knowingly, or intentionally to:
(a) Fail, by false statement, misrepresentation,
impersonation, or other fraudulent means, to disclose in any
application for voluntary or paid employment a material fact used
in making a determination as to such person's qualifications for a
position of special trust.
(b) Use records information for purposes other than screening
for employment or release records information to other persons for
purposes other than screening for employment.
(2) It is a felony of the third degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084, for any person
willfully, knowingly, or intentionally to use juvenile records
information for any purposes other than specified in this section
or to release such information to other persons for purposes other
than specified in this section.
History.--s. 47, ch. 95-228; s. 283, ch. 96-406.
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