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Background Checks in an Evolving World: Florida Statute Section 110.1127 and Adverse Action Process

Learn about the effect of changes in Florida Statute Section 110.1127 on background checks, the designation of special trust or responsibility positions, and the application of Chapter 435. Understand the adverse action process and procedures for VECHS and non-VECHS national criminal history checks.

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Background Checks in an Evolving World: Florida Statute Section 110.1127 and Adverse Action Process

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  1. Background ChecksCUHRE_APAC 2019 Conference

  2. Topics for the Evolving World of Background Checks • Effect of the Change in Florida Statute Section 110.1127 • Designation of Position as Special Trust or Responsibility or Sensitive Location • Application of Other Parts of Chapter 435 • Effect of the Statutory Change and the Adverse Action Process • Procedures-VECHS • Procedures-Non-VECHS National Criminal History ORI • Procedures-Clearinghouse

  3. Effect of the Change in Florida Statute Section 110.1127 • Senate Bill 7014 • Updates Florida Statute (FS) 110.1127 as of July 1st • Allows Florida colleges and universities to conduct criminal history record checks on specific staff • Section 1: Designate positions that require Level 1 background screening in accordance to Chapter 435 • Section 2: Designate positions of special trust, responsibility, and/or sensitive location that require Level 2 in accordance to Chapter 435

  4. Designation of Position as Special Trust or Responsibility or Sensitive Location • Definition • FS 110.1127 allows for each agency to determine which positions are considered special trust or responsibility or sensitive location • Each college/university designates positions of special trust position, responsibility, or sensitive location

  5. Application of Other Parts of Chapter 435 F.S. 435.05 requires the following: • Must submit screening info to FDLE w/in 5 working days of receipt for Levels 1 & 2 • Applicant must submit any missing criminal or other necessary info upon request w/in 30 days • Every employee must attest, under penalty of perjury, to meeting the requirements qualifying for employment • Every employee must agree to inform employer immediately if arrested for any Chapter 435 offenses while employed • Every employer licensed/registered with agency must attest annually or at renewal compliance with Chapter 435

  6. Effect of the Statutory Change on the Adverse Action Process • Fair Credit Reporting Act and the Equal Employment Opportunity Commission (EEOC) give shape to the adverse action process • Part of the adverse action process is the individualized assessment • If an applicant has a Chapter 435 “hit,” should the individualized assessment be conducted? • Yes because of the EEOC guidelines • Yes because of exemption from disqualification requires contained in FS 435.07

  7. FS 435.07 Exemptions from Disqualification for Employment Process • Applicant/employee can request an exemption from being disqualified under Chapter 435 • Person must demonstrate by clear & convincing evidence that shouldn’t be disqualified pursuant to FS 435.07(1)(a) criteria • Person must show rehabilitation pursuant to the statutory criteria • Agency may consider subsequent arrests for any crime when deciding about the employee’s rehabilitation • Decision regarding the exemption may be contested through a Chapter 120 administrative hearing • Standard of review is whether agency abused its discretion

  8. Procedures-VECHS • Volunteers & Employee Criminal History System (VECHS) • State and National Criminal History Record information provided by Florida Department of Law Enforcement (FDLE) and the Federal Bureau of Investigation (FBI) • Only used for positions that offer care or care placement services specifically to children, the elderly, or the disabled as defined in Florida Statute 943.0542 • Not to be used for criminal history record checks under other statutory provision (i.e., daycares, summer camps) • VECHS Program • Must apply for an account and be approved (Employee and Volunteer ORI) • Account termination and reinstatement since July 1st

  9. Procedures-Non-VECHS National Criminal History ORI • Non-VECHS National Criminal History ORI • National criminal history information provided from the FBI (FBI ORI) • Different than the VECHS account • Must apply to the FDLE Deputy Director

  10. DCF Clearinghouse Process • Background checks administered by the Agency for Health Care Administration (AHCA) • FS Chapter 408 Part II • For those who provide services to children, the elderly, and disabled individuals • Childcare centers • Summer Camps • Health Care Clinics

  11. Next Steps • Things to changes and/or update • Background Check Policy and Procedures • Define Special Trust or Responsibility or Special Location Positions • Address Employee’s continuing obligation to disclose arrests • Fingerprint Accounts • VECHS • Account termination and new account approval/creation • Non-VECHS accounts • FL State Only • National Criminal History • Clearinghouse Process

  12. FL SUS Background Check Group

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