The City of Gainesville is joining the growing list of jurisdictions that have implemented Fair Chance laws. In the unanimous vote, the City Commission passed the Ordinance which prohibits private employers from inquiring into an individual’s criminal history until an offer for employment has been provided as well as providing employers with additional restrictions and responsibilities.
The Basics
Location: Florida
City: Gainesville
Legislation: Fair chance Hiring
Type: Ban the Box
Effective: January 1, 2023
Key Takeaways
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Employers may not solicit criminal history information about an individual or consider an individual's criminal history unless the employer has first made a conditional offer of employment to the individual.
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An employer may not solicit from the applicant or otherwise inquire, even though a consumer reporting agency or other third party, about an arrest or criminal accusation made against an individual that is (i) not currently pending against the applicant or (ii) did not result in a conviction, plea of nolo contendere, or deferred adjudication. However, this does not apply to arrests or criminal accusations relating to domestic violence.
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Employers may not take adverse action against an individual because of the individual's criminal history unless the employer has determined that the individual is unsuitable for the job based on an individualized assessment conducted by the employer.
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Employers have additional obligations if they take adverse action against an individual because of the individual’s criminal history, including but not limited to, informing the individual of the basis of the decision, and providing specific language on the adverse action notice as noted below.
Who does the Ordinance apply to?
This Ordinance applies to any person, company, corporation, firm, labor organization, or association that employs at least fifteen (15) individuals whose primary work location is in the City of Gainesville for each working day in each of four (4) or more calendar weeks in the current or preceding calendar year. The term “employer” also includes an agency acting on behalf of an employer.
What restrictions does an employer have when soliciting criminal history from the applicant or third-parties?
An employer may not solicit from the applicant or otherwise inquire, even through a consumer reporting agency or other third party, about an arrest or criminal accusation made against an individual that is (i) not currently pending against the applicant or (ii) did not result in a conviction, plea of nolo contendere, or deferred adjudication. However, this does not apply to arrests or criminal accusations relating to domestic violence.
What is required for an individualized assessment?
Employers must conduct an individualized assessment to evaluate the criminal history of an individual that includes the following, at a minimum:
(1) the nature and gravity of any offenses in the individual's criminal history;
(2) the age of the individual at the time of the offense;
(3) the length of time since the offense and completion of the sentence;
(4) the nature and duties of the job for which the individual has applied; and
(5) any information demonstrating the individual’s rehabilitation and good conduct since the occurrence of the criminal offense.
Can an employer take adverse action based on criminal history?
Employers may not take adverse action against an individual because the individual did not provide criminal history information prior to the conditional employment offer, however, they may take adverse action provided they comply with their required responsibilities.
Employers must:
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Inform the individual of the basis for the decision;
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Provide the individual with the criminal history records used by the employer in consideration of the individual’s application; and
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Provide the individual a reasonable opportunity to provide the employer with additional context about the criminal history records and any information demonstrating the individual’s rehabilitation and good conduct since the occurrence of the criminal offense.
If an employer decides to disqualify an individual based on the individual’s criminal history, the employer must:
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Inform the individual in writing that they made this decision based on the individual’s criminal history; and
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Include the following statement in the notice:
This notice is 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.
Are there other requirements?
Yes. We recommend all impacted employers review this Ordinance carefully to understand all their obligations. As an example, employers may not publish or cause to be published information about a job covered by this article that states or implies that an individual's criminal history automatically disqualifies the individual from consideration for the job.
Are there any exceptions?
Yes. Specific employers like day care facilities are exempt from this ordinance. In addition, employers with less than 15 employees are exempt as well. It should also be noted that this ordinance would not apply to a job/employment for which a federal, state, or local law or compliance with legally mandated insurance or bond requirement would disqualify an individual based on their criminal history.
Are there penalties?
The ordinance would be enforced by the City’s Office of Equity and Inclusion, which has the authority to issue civil penalties (fines) to the business(es) who violates this ordinance.
Recommendations
We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.
