Partner, Christina Harris Schwinn speaks with reporter Nanci Theoret
TWO OF THE MORE THAN 2,000 BILLS expected to be considered by the 2014 Florida Legislature could impact the way businesses hire employees. Designed to give potential employees with not-so-stellar criminal and credit backgrounds a better chance of scoring a first interview or getting the job, Senate Bills 234 and 324 for the most part have slipped under the radar of groups likely to support and oppose the legislation.
As they stand now — before the jockeying and political deal-making — the bills would prevent employers from asking about criminal backgrounds on initial employment applications and prohibit businesses from hiring based on credit reports.
SB234 Discrimination in Employment Screening, filed in October by Sen. Jeff Clemens, a Democrat from the Palm Beach County area, would prohibit employers from inquiring into a jobseeker’s criminal record on an initial employment application, unless required by law. The bill’s aim is to decrease unemployment in communities with high concentrations of people with criminal histories and potentially reduce recidivism through gainful employment.
Employment Practices, a general bill introduced by Commerce and Tourism and Republican Sen. Nancy Detert, whose predominately Sarasota County district includes a slice of Charlotte, would prohibit employers from using a job applicant’s credit history to deny employment or determine compensation, terms and conditions of employment.
The Florida bills are designed to stop companies from screening job candidates based on application information — in essence helping otherwise qualified individuals who met minimum requirements get past the first step. The laws would not prevent criminal background or credit checks further along in the hiring process nor apply to banks, financial advisors and other businesses that handle personal information, credit cards and potentially sensitive information.
Christina Harris Schwinn, a Fort Myers employment lawyer and partner in Pavese Law Firm, says both bills have good intentions but are likely to be met with vehement opposition from organizations representing Florida’s businesses.
Ms. Schwinn advocates criminal background checks in many employment scenarios, especially those involving children and the elderly, and in other situations after a candidate has met minimal employment qualifications.
“I have no issue with this bill,” she says. “I think it’s a good thing. We should be evaluating people based on factors that are relevant. I always ask my clients why they’re running background checks, what risk they’re trying to address in the workplace.”
The Florida Legislature will consider the bills during its regular session which began Tuesday. Neither bills rank among the most viewed or monitored — no surprise to Ms. Schwinn who will discuss both during the March 12 meeting of the Human Resource Management Association of Southwest Florida.
She predicts opposition to both bills from the Associated Industries of Florida and other lobbying powerhouses.
Neither the state chamber nor HR Florida State Council, a 14,000-member affiliated with the Society for Human Resource Management, have taken an official stance.
“At the Florida Chamber, we remain focused on the big picture — helping make Florida’s business climate more competitive and lowering the cost of living for Florida’s families and small businesses,” Edie Ousley, vice president of public affairs, responded via email. “There will likely be more than 2,000 bills filed this legislative session, but only about 10 percent will likely pass. The Florida Chamber is closely following hundreds of bills that directly link to Florida’s ability to create more competitive opportunities for families and small businesses.”
Orlando attorney Don Works, the legislative chairman for HR Florida, says the organization was waiting until the second week of March, the Legislature’s first full week, to take any formal position on pending legislation.
SB 234 follows a national movement and 2012 recommendations from the Equal Employment Opportunity Commission to eliminate questions on applications asking about criminal history. Proponents contend the question emphasizes a candidate’s past mistakes not qualifications.
In 2011, the National Employment Law Project reported 65 million Americans — one out of every four adults — had criminal records that could show up during a routine background check.Jacksonville and Tampa are the only two Florida municipalities and among 56 cities and counties nationwide that have removed criminal history checkboxes from applications, according to NELP’s January 2014 “Ban the Box” report.
Local CareerSource centers don’t track the number of their unemployed clients with criminal histories, but officials say they work with a surprisingly large number with backgrounds.
“We have a larger percent of clients you would never think had a criminal history,” says Debbie Guilbault, center supervisor for the CareerSource office in Port Charlotte. “It surprises me how fairly often we encounter this; the numbers are much higher than you’d think. Some have had one problem and taken care of it. Other people have really long records and they’re hard to place.”
Offenses run the gamut from minor to murder.
Beth Barger, supervisor for Career- Source’s Naples offices, sees both the pros and cons of the proposed legislation.
“The intent is for people to be seen for who they are now, that the system rehabilitates and people deserve a second chance,” she said. “But you also have to ask yourself, if it was your company, what would you do? Employers are our customers as well and they want to hire the best possible candidates. Background checks may make hiring a bit harder but that hasn’t stopped employers from hiring people in certain industries. Finding jobs for folks with histories does take longer.”
Convictions and arrests are everlasting and easily unearthed by searching county criminal court records.
“I view this as removing an artificial barrier,” says Ms. Schwinn. “Juvenile records are not sealed, not in this era. There is so much information already out there. Arrest records are inherently unreliable. You can visit the Lee County website and find cases that have been resolved after 10 years.”
Ms. Barger says many employers have removed the arrest question from applications. “That’s how business used to be conducted and thankfully they’ve refined that.”
There’s also that old Constitutional right of innocent until proven guilty.
“I have good employers who are willing to work around these issues,” says Ms. Guilbault. “I’ll pick up the phone and tell them I have a good candidate that meets their qualification but there is a blemish on their record. We see so many people coming through that just can’t get an interview because of the question on the application.”
Criminal background checks have an adverse effect on minorities. Should current incarceration rates remain unchanged, Ms. Schwinn points to EEOC data showing one out of every 17 white men will be imprisoned during their lifetime, one in six Hispanic men and one in three African-American men.
“This legislation is saying an employer can’t use criminal background and credit history as a legitimate reason to say you’re out,” she says. “Companies do it all the time and that’s why this legislation is being introduced.”
Old crimes coming back to haunt
“I always tell someone with a history of theft it’s not wise to apply for a retail job. They apply, don’t get the job and wonder why,” says Ms. Barger. “I had someone applying for teaching positions and she has shoplifted at 18. Records are records and they don’t go away even if the crime was committed during what I call the young, dumb and stupid years. She did eventually get licensed.”
The criminal conviction question is a Catch-22 — one businesses use as a litmus test of honesty and often if answered truthfully automatically disqualifies a candidate.
Ms. Guilbault advises applicants to respond truthfully and provide an abbreviated account.
“The more you talk about it, the worse it sounds,” says Ms. Barger, a former probation and parole officer. “It’s better if you don’t focus on the crime because the more you try to explain it or say it wasn’t your fault, it sounds like you’ve never accepted responsibility. I tell candidates to focus on the positive: what they did to get their life back on track; if they did time what they learned.
As liaisons representing employers and the unemployed CareerSource centers have to tread carefully.
“At some point an employer has a right to know if the cashier they want to hire has stolen before,” says Ms. Guilbault. “Employers still have to think of liability.”
Ms. Schwinn agrees: “If someone’s had a traffic ticket, big deal,” she says. “But if they’ve had 15 in five years and want to drive a truck for you, you don’t want to hire that person.”
Checking credit history has become “pretty pervasive” in the employment picture, Ms. Guilbault notes. “If an employee is handling money, it makes sense to check their credit but there’s no way credit history affects the average position. After the economy we’ve had the past five years or so, people have lost their homes and have bad credit. Yes, they’re at fault but they’re also victims of a downturn in the economy.”
Ms. Schwinn advises her home healthcare clients to delve deep into potential employees’ records. Certified nursing assistants and other contracted employees often work with elderly patients in their homes and have access to credit cards, jewelry, medication and even money. “They can also unduly influence that person.”
The Florida Chamber’s Ms. Ousley says the proposed legislation could have a negative impact on the state’s jobs outlook.
“Limiting an employer’s ability to recruit and hire employees, especially in financially sensitive positions or jobs that have very stringent federal oversight, could potentially diminish Florida’s ability to put more Floridians to work,” she noted. “We will continue to follow these bills throughout the legislative process.”
For candidates with shoddy credit or a criminal conviction, Ms. Barger’s office provides federal bonding as a means to overcome stumbling blocks. Women, she says, fared worse during the recession. “Women go through divorce or a relationship breakup and their finances are burned.”
Victims of identity theft could also lose potential jobs, noted Ms. Schwinn.
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