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Convicted Felons in Florida Have a Much
Easier Time Getting a Job That Provides Them Access to Your Family While doing
Work in Your Home Than in Any Other State in the Country! Why? Ask FL Senate President Tom Lee! (1) In a civil action
for the death of, or injury or damage to, a third person caused by the
intentional tort of an employee, such employee's employer is presumed not to
have been negligent in hiring such employee if, before hiring the employee, the
employer conducted a background investigation of the prospective employee and
the investigation did not reveal any information that reasonably demonstrated
the unsuitability of the prospective employee for the particular work to be
performed or for the employment in general. A background investigation under
this section must include: (a) Obtaining a criminal background investigation on the prospective employee under subsection (2); (b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment; (c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action; (d) Obtaining, with
written authorization from the prospective employee, a check of the driver's
license record of the prospective employee if such a check is relevant to the
work the employee will be performing and if the record can reasonably be
obtained; and (e) Interviewing the prospective employee. (2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request. We applauded the intent of this Senate amendment as it was certainly in the public’s interest for employers to be encouraged to do (a), (b), (c), (d) “and” (e) which included doing criminal background name checks through the state to allow employers to exclude at least convicted felons in Florida state records from certain jobs that would give them unsupervised access to women and children in their homes. We personally recommend FBI fingerprint checks because they are the most comprehensive and accurate available. According to the FBI, of 100 non-criminal justice applicants (those being screened for employment or volunteer purposes), 12 will have criminal records. Of these 12 with criminal records, 3 will show conviction for felonies while as many as 8 will show arrests for potentially disqualifying crimes and felonies without final adjudication information. However, we still thought that FL employers should be encouraged to at least do criminal background name checks through the state and be rewarded for doing so with a presumption against negligent hiring. Unfortunately, the Florida House refused to accept the Senate amendment as written and the entire issue was left to four Representatives and four Senators in a House/Senate Conference Committee. The Committee members discussed the various issues and finally agreed on the language. Both the House and the Senate passed H 775 as amended by the Conference Committee. Governor Bush proudly signed it into law. However, other than the members of the Conference Committee, no one else knew of the one word change that was made in the section pertaining to Employer Presumption Against Negligent Hiring 768.096. or its significance. When Jody Gorran later asked members of the Conference Committee who had specifically come up with this one word change and why, none of the Senators on the Conference Committee could remember whose idea it was, including Senator Tom Lee, current Senate President, who happened to have been one of the Conference Committee members in 1999. It was only one word that was changed in this section. How important could it be? The version of 768.096 that was passed by the legislature, signed into law by the Governor was even upheld in December 2002 by the Florida Supreme Court as being “constitutional”. It gave employers a presumption against negligent hiring if they did (a), (b), (c), (d) “or” (e), with (e) being “Interviewing the prospective employee.” Someone on that House/Senate
Conference Committee had the bright idea to change “and” to “or” and put us all
at risk. What was originally an “and” in a law which would have helped protect
and benefit the public, became an “or” in a law which helped protect and
benefit certain employers at the expense of all So now for the purposes of obtaining an employer presumption against negligent hiring, the law now equates the information that can be gained from (a) a criminal background name check through the Florida Department of Law Enforcement with (e) Interviewing the prospective employee. The longer this law remains unchanged, the longer employers can keep hiring more and more unscreened people and they have no incentive now to do criminal background checks on their employees as compared to before 1999 when this law was passed. At least before 1999, an employer could be held liable in court for negligent hiring and made to pay damages if he hired an employee with a criminal record that he could have uncovered, and this employee raped and murdered a little girl in her home while he was on the job doing carpentry or making plumbing repairs or electrical repairs, or doing pest control or painting, etc. Now all the employer has to show is that he “interviewed the prospective employee.” How hard is that going to be? The Florida Legislature must change this law now! Someone has to do something now! Do we have to first wait for another | |