Ban the Box Laws in Florida: Criminal History in Hiring

The federal baseline for criminal history inquiries is established through EEOC enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. While Title VII does not explicitly prohibit inquiries about criminal history, the EEOC has taken the position that blanket exclusions or blanket inquiries about criminal records can have a disparate impact on certain protected classes, particularly African American and Hispanic applicants, and therefore may violate Title VII if the employer cannot demonstrate that the policy is job-related and consistent with business necessity.

The EEOC's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions requires employers to conduct an individualized assessment of an applicant's criminal record rather than applying automatic disqualifications. Employers must consider the nature and gravity of the offense, the time elapsed since the conviction, and the nature of the job. The EEOC enforces this guidance under Title VII and covers all private employers with 15 or more employees. Federal contractors and subcontractors are additionally regulated under Executive Order 11246, which has encouraged ban-the-box policies for federal contractors, though it does not mandate them. Remedies under Title VII include back pay, front pay, compensatory damages for emotional distress, punitive damages, attorney's fees, and injunctive relief.

Florida has no statewide ban-the-box law that restricts when private employers may inquire about criminal history during the hiring process. Florida Statutes § 112.011 addresses criminal history considerations but applies only to state employment, not private sector employers. This means private employers in Florida can legally ask about criminal records at any stage of the hiring process—including application forms and initial interviews—as long as they do not violate federal law regarding disparate impact.

However, certain local governments in Florida, particularly Miami-Dade County and the City of Miami, have adopted local ban-the-box ordinances that prohibit city contractors and employers under those jurisdictions from asking about criminal history until after a conditional job offer has been made. For example, Miami-Dade County Ordinance No. 14-87 requires a "delay-the-question" approach for both city employees and contractors. Additionally, some Florida employers have voluntarily adopted ban-the-box policies as part of corporate initiative.

Under Florida law, employers do have the right to request and review criminal history records, but they must comply with the Florida Statute § 943.059 Fair Chance Act provisions when hiring for certain positions. The Act requires that background checks be relevant to the position applied for and that employers conduct individualized consideration of criminal records before denying employment based on a conviction. Florida employers are prohibited from denying employment solely on the basis of a sealed or expunged record under § 943.059(1)(b).

The distinction is critical: while Florida law does not prevent the timing of criminal history inquiries like ban-the-box states do, it does require employers to be careful about how they use criminal information once obtained. Employers in Florida must also consider federal EEOC guidance and Title VII implications. State law provides stronger protections than federal law in one key area: employers cannot inquire about or consider arrests that did not result in conviction, sealed records, or expunged records under Florida's Fair Chance Act.

Florida employers are not subject to a statewide ban-the-box requirement, which is a major exception compared to 35+ states and many localities that have adopted ban-the-box laws. This means private employers can legally inquire about criminal history at any point in hiring—including on initial job applications—without violating Florida state law.

However, several important exceptions exist where employers must limit or avoid criminal history inquiries: First, under Florida Statute § 943.059, employers cannot ask about or deny employment based on arrests that did not result in conviction. Second, employers cannot consider sealed or expunged criminal records in making employment decisions. Third, the EEOC's disparate impact doctrine under Title VII still applies in Florida; if an employer's blanket criminal history policy disproportionately excludes protected classes without being job-related and justified by business necessity, it violates federal law. Fourth, local ordinances in Miami-Dade County and the City of Miami impose ban-the-box requirements for government contractors and city employees specifically.

Additional exceptions include positions where Florida law specifically requires criminal background checks as a condition of employment, such as certain healthcare, childcare, and financial services positions. In these cases, inquiries are permitted and required. Jobs involving direct contact with minors, vulnerable adults, or handling controlled substances also have carve-outs. Finally, employers cannot retaliate against applicants or employees who challenge the use of criminal history in employment decisions or who file complaints with the EEOC or Florida Commission on Human Rights. At-will employment does apply in Florida, meaning employment relationships can be terminated without cause unless specifically restricted by contract, collective bargaining agreement, or law—but this does not shield employers from liability for using criminal history in a manner that violates federal or state law.

Step 1: Document the employer's criminal history inquiry and hiring practices. If you are a job applicant, save all job applications, emails from the employer asking about criminal history, interview notes, and any written policies the employer provided regarding criminal background checks. Record the date and details of any in-person or phone inquiry about your criminal history and the context—whether it occurred before or after a conditional job offer. Keep copies of all rejection letters and any statements the employer made about why you were not hired. If you are an employee or former employee, document any instances where criminal history was used in personnel decisions affecting promotion, assignment, demotion, or termination.

Step 2: Exhaust internal complaint procedures if possible, though not always mandatory. Before filing with an external agency, send a written complaint to the employer's human resources department or designated equal employment opportunity officer documenting: (1) what criminal history inquiry or decision was made, (2) when it occurred, (3) who was responsible, (4) how you believe it violated your rights, and (5) what remedy you seek. Keep a copy of this complaint and document the date you submitted it. Request a written response from the employer within 10 business days. This step demonstrates good faith and may encourage the employer to remedy the situation, but failure to respond internally does not prevent you from filing with an agency.

Step 3: File a charge of discrimination with the Florida Commission on Human Rights (FCHR) and/or the EEOC. Florida is a "dual filing" state, meaning filing with the FCHR automatically cross-files with the EEOC. Contact the FCHR at their website (www.fchr.myflorida.com) or call 850-488-7082. You have 365 days to file in Florida (vs. 300 days federally in deferral states; however, the federal deadline of 180 days applies if you only file with the EEOC). The charge must include: your name, address, and phone number; the employer's name, address, and phone number; a description of the discriminatory conduct (the criminal history inquiry and how it affected your employment); the date(s) of the conduct; whether the employer has 15 or more employees; and which laws you believe were violated (Title VII, EEOC's EEOC Enforcement Guidance on criminal records, and/or Florida's Fair Chance Act § 943.059 if applicable to your situation). File online, by mail, or in person at an FCHR office.

Step 4: Participate in the investigation process. The FCHR and EEOC will assign an investigator who will contact both you and the employer within 5-10 business days of your charge filing. The investigator will request additional documentation, including the job posting, your application, any communications between you and the employer, and the employer's hiring policies and criteria. You may be asked to provide witness information or additional details in writing. The investigation typically takes 90-120 days but can extend longer if complex. The employer will be given an opportunity to respond to your allegations. You have the right to participate in EEOC-supervised conciliation if the agency finds reasonable cause to believe a violation occurred. Conciliation is a confidential settlement process that typically lasts 30-60 days. If conciliation fails, the EEOC may file suit on your behalf, or you may receive a "Right to Sue" letter allowing you to file a private lawsuit.

Step 5: Consult an employment law attorney if the violation is substantial or the employer is large. An employment lawyer can evaluate whether your case has strong merit under Title VII disparate impact theory, Florida's Fair Chance Act, or local ordinances if applicable. Attorneys can also help you negotiate a settlement during the investigation or conciliation phase. Many employment attorneys work on a contingency basis in discrimination cases, meaning you pay nothing upfront and they take a percentage of any settlement or judgment. Contact a Florida State Bar-certified employment law specialist or reach out to legal aid organizations if cost is a barrier. An attorney is especially valuable if the employer retaliates against you after you file a charge, as retaliation claims can compound your damages.