Effective December 15, 2022, the city of Gainesville became the first jurisdiction in Florida to restrict the use of pre-employment inquiries into an applicant’s criminal history.¹  The City has now joined the dozens of other states, counties, and municipalities outside of Florida that have placed restrictions on the consideration of an applicant’s criminal history.  What’s more, the City’s law is actually one of the more onerous laws and is similar in some respects to the New York City Fair Chance Act.

Fair Chance Hiring Practices

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 preceding calendar year.  It also applies to staffing agencies that assign individuals to work for employers and retains the obligation to pay such individuals for that work.  Certain entities are exempted from the law’s requirements, including state and governmental entities and actors, childcare facilities (as defined by Florida law), care facilities falling under Chapter 400 and Chapter 429 of the Florida Statutes, and other entities that are excluded by operation of state or federal law. 

Non-exempt employers are prohibited from, among other things:

1. Publishing information about a job that states or implies that criminal history automatically disqualifies an individual from consideration for the job;
2. Soliciting or otherwise inquiring about an applicant’s criminal history in the employment application and unless the employer has first made a conditional offer of employment to the applicant;²
3. Soliciting or otherwise inquiring about arrests or criminal charges, except pending charges, that did not result in a conviction, plea of nolo contendere, or deferred adjudication;³ and  
4. Refusing to consider employing an individual because the individual did not provide criminal history information before receiving a conditional offer of employment.

The law defines a conditional offer of employment as an offer that is conditioned solely on the employer’s evaluation of the criminal history or any pre-employment medical examinations under the Americans with Disabilities Act (ADA).  In other words, any other conditions of employment, such as reference checks, education verifications, employment verifications, and non-criminal background checks, must be completed before the conditional offer of employment is made. 

Individualized Assessment and Adverse Action Process

If, after making a conditional offer of employment, an employer learns an applicant has a criminal history, it must conduct an individualized assessment to determine if the applicant may be unsuitable for the job.  The assessment requires the employer to consider, at a minimum:  the nature and gravity of the offense(s); the age of the applicant at the time of the offense(s); the length of time since the offense and completion of sentence; the nature of the duties and job at issue; and information demonstrating rehabilitation or good conduct since the offense(s). 

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 it considered, and give the applicant a reasonable opportunity to provide additional information, including any information demonstrating rehabilitation and good conduct since the offense(s).  If the employer proceeds to take adverse action, 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.”

Enforcement and Anti-Retaliation

Aggrieved individuals may file a complaint with the Gainesville Office of Equity and Inclusion by no later than the 90th day after the individual has knowledge of the alleged violation, but in no event later than 180 days from the date of the alleged violation.  If a violation is found the Office of Equity and Inclusion shall provide notice to the employer and issue a civil citation.  Civil penalties may be assessed against the employer for up to $500 for each violation, but the penalty may be waived for the first violation if the employer attends a training session about compliance with the law.  Half of any civil penalty recovered shall be awarded to the individual who filed the complaint.

Employers are prohibited from retaliating against an individual who reported a violation or participated in the administrative process.

Compliance Recommendations for Employers

Covered employers with operations in Gainesville should review their employment applications and job postings and remove any questions about or references to criminal history.  Any inquiry about criminal history for positions in Gainesville should be delayed until after a conditional offer of employment has been made, as the term “conditional offer” is defined by the ordinance.  Covered employers should also review their processes for assessing criminal history information and taking adverse action against individuals based on such information to ensure compliance with the law.  Finally, employers and staffing agencies that have employees in Gainesville, or in other jurisdictions with ban-the-box and fair chance laws, should consult with experienced employment counsel to assess their compliance with federal, state, and local requirements.