Background Screenings Your Fight Is Our Fight

Background Screenings in Florida

What Are Level 1 and Level 2 Background Screenings?

The Level 1 and Level 2 background screenings in Florida may limit the effectiveness of a record sealed or expunged. Should you do it anyway?

In my opinion, yes. Expunging or sealing a record can offer you some advantage with a potential employer when a Level 1 or 2 background check is required.

Florida Employment Background Screenings

There’s some confusion about the workings of Chapter 435 (background check for employment), and sections 943.0584 (restrictions on sealing records), 943.0585 (expungements) and 943.059 (sealings).

There are two main questions:

  • What effect does an expunged or sealed record have on Level 1 or Level 2 state law required background screenings?
  • Do you have to disclose an expunged or sealed record when you have a Level 1 or 2 background screening?

Chapter 435 – Employment Background Screenings

Section 435.01 points out that Chapter 435 is applicable for screening potential employees who are required to pass background screenings (background check) by law. The definitions (found under section 435.02) define “employer” as any person or entity “required by law to conduct screening of employees pursuant to this chapter.”

Listed Agencies for the Background Checks

The employers required to conduct employee background screenings pursuant to Chapter 435 are not specifically identified. However, section 435.02 does give us an idea on what type of employers would be required to do these background screenings. “Agency” is defined as any state, county, or municipal agency “that grants licenses… permitting the operation of an employer[.]”

It further defines “specified agency” as the following:

  • Department of Health
  • Department of Children and Families
  • Division of Vocational Rehabilitation
  • Department of Education
  • Agency for Health Care Administration
  • Department of Elderly Affairs
  • Department of Juvenile Justice
  • Agency for Persons with Disabilities
  • Local Licensing Agencies approved pursuant to section 402.307, see Chapter 402 – Health and Human Services; Miscellaneous Provisions

From this list we can get an idea of the types of employers that are required by law to perform the type of background screenings on potential employees required by Chapter 435. Businesses in the service field that deal directly with children, the elderly, the mentally or physically disabled, and health care services in general seem to be the types of businesses and employers required to perform these background screenings on potential employees.

The Two Types of Background Screenings; Level 1 Screening and Level 2 Screening

There are two types of employment background check; Level 1 and Level 2. I will start out by breaking down each of the background screenings into understandable language, then I will point out their differences.

Level 1 background screening is found under section 435.03, Florida Statutes. It has three subsections:

  • All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.
  • Any person required by law to be screened pursuant to this section must not have an arrest awaiting final disposition, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.
  • The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and through the Department of Law Enforcement, and a check of the National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

Subsection (1) lets us know what a Level 1 screening consists of; however – the words “not limited to” suggests that further background screenings that are more in depth is a possibility. With that in mind, this should be considered a list of the minimal amount of screening required for employment which requires a Level 1 screening.

Subsection 2:

Any person required by law to be screened pursuant to this section must not have:

  • An arrest awaiting final disposition;
  • Must not have been found guilty;
  • Must not have been adjudicated delinquent; and
  • The record has not been sealed or expunged for any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

“Being found guilty of” encompasses many types of adult adjudications and types of pleas. An interesting point occurs with the next line “must not have been adjudicated delinquent.” This refers to juvenile cases and the absence of language discriminating between types of adjudications suggests that a juvenile offense in which the adjudication of delinquency is “withheld” is not a bar to employment.

The statute states what a potential employee cannot have on his or her record. The following line, with the conjunction “and,” states “the record has not been sealed or expunged for” any offense prohibited by section 435.04(2). This is confusing because it is hard to discern the point being made (is a sealed or expunged record a bar to employment or not?) without a full understanding of the sealing and expungement statutes.

The first thing to understand regarding expungements is that charges stemming from an arrest have to be dropped (dismissed, abandoned, etc.) or has had to been sealed for at least 10 years in order to qualify to be expunged. Arrests where the charges are dropped are not a concern according to the language of the statute.

In order to have an arrest sealed the defendant would have been found guilty of the offense and the adjudication must be withheld. The Level 1 screening statute contemplates this when it states that the potential employee must not have been found guilty of offenses prohibited under 435.04(2) “regardless of adjudication.” Since a dropped case is of no consequence to the statute, the reference to expunged record must be concerning a record originally sealed for 10-years and then expunged.

Therefore, a record of an offense listed under 435.04(2) that has been sealed would not be a bar to employment when the language “the record has not been sealed or expunged for” is interpreted correctly. The conclusion must be that the conjunction “and” and the language “the record has not been sealed or expunged for” would be clearer if it read “unless the record has been sealed or expunged for.”

Subsection 3: (The Domestic Violence Bar to Employment)

Subsection 3 refers to a potential employee being found guilty of any act of domestic violence. Any act of domestic violence, where the defendant has been found guilty, cannot be sealed and effectively bars employment.

Level 2 Background Check

Level 2 background check is very similar to Level 1 background check. It is more extensive.

435.04 Level 2 Screening Standards

(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history 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 arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction[.]

The level 2 background check differs only in the minimal screening standards. Unlike a Level 1 background check, a Level 2 screening requires the taking of fingerprints and a “national criminal history records checks through the Federal Bureau of Investigation.” The prohibited offenses are the same as those listed above.

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