Disclosure After Your Record Has Been Expunged or Sealed
What a Potential Employee Must Disclose
Potential employees are legally bound to be truthful on all applications for employment. A person who has had their arrest record sealed has an option. Once a person has their record sealed, he or she may “lawfully deny or fail to acknowledge the arrests covered by the sealed record” for employment purposes. The exceptions to this ability to lawfully deny an arrest are broad when it comes to employment areas.
Specifically, the statute states:
[Section 943.059(4), Florida Statutes] EFFECT OF CRIMINAL HISTORY RECORD SEALING.
A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject’s attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decision-making responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes.
(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
- Is a candidate for employment with a criminal justice agency;
- Is a defendant in a criminal prosecution;
- Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.0585;
- Is a candidate for admission to The Florida Bar;
- Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;
- Is seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;
- Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;
- Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;
- Is seeking to be appointed as a guardian pursuant to s. 744.3125; or
- Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.
(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.
If we review the “listed agencies” in s. 435, above, we will find some similarities with the agencies listed is s. 943.059. In the sealing statute, the listed agencies are as follows:
- Criminal Justice Agency
- The Florida Bar
- Department of Children and Families
- The Division of Vocational Rehabilitation within the Department of Education
- The Agency for Health Care Administration
- The Agency for Persons with Disabilities
- The Department of Health
- The Department of Elderly Affairs
- The Department of Juvenile Justice
- The Department of Education
- The Division of Insurance Agent and Agency Services within the Department of Financial Services
The law states that when a person seeks direct employment, employment as a contractor, or licensing to work through these agencies he or she must disclose the record of arrest. This statute differs from 435 above and described in our section on background screenings, in that it is not a bar to employment. It only requires disclosure even if the record has been sealed.
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