The Newest Fair Chance Hiring Ordinance: What You Need to Know

In December 2022, The Gainesville City Commission passed the Fair Chance Hiring Ordinance, a directive that limits an employer’s use of a job applicant’s criminal history when making hiring or promotion decisions and imposes civil money penalties for violations of the ordinance. The new directive is part of a growing state and local trend of adding unique specific steps in the background screening process. However, these new laws make the hiring process more complex. So, what do you need to know about the new Fair Chance Hiring Ordinance?

The Fair Chance Hiring Ordinance applies to most private employers with 15 or more employees whose primary work location is in the city.  In addition to an exception for employees with less than 15 employees, there are other exceptions to coverage under the ordinance, such as child care facilities as defined by Florida Statutes and care facilities under Chapter 400 or 429 of the Florida Statutes.

Among other provisions, the ordinance prohibits a covered employer from asking a job applicant or a third party about the applicant’s criminal history until after the employer has made a conditional job offer.  And it prohibits an employer from taking adverse employment action against an applicant with a criminal history unless the employer has determined, by way of an “individualized assessment,” that the applicant is unsuitable for the job offered.  This individualized assessment is to include at a minimum the following factors: 1) the nature and seriousness of the offense, 2) the individual’s age at the time of the offense, 3) the length of time since the offense and completion of the sentence, 4) the nature and duties of the job for which the individual has applied, and 5) any information about the individual’s rehabilitation and “good conduct” since the offense occurred.

In addition, before a covered employer takes adverse action against an individual because of his or her criminal history, it must tell the individual why it is taking the action, provide him or her with the criminal records the employer considered, and give the individual an opportunity to provide context about the criminal history records and any information showing the individual’s rehabilitation and “good conduct” since the offense occurred.  And after the adverse action occurs, an employer must notify the individual, in writing, that the action was taken because of his or her criminal history and must include a statement that the written notice is being provided in accordance with the new ordinance.

The City’s Office of Equity and Inclusion is charged with enforcing alleged violations of the ordinance.  Its powers include investigating complaints and adopting rules to implement the ordinance.  An employer determined by the city to have violated the ordinance faces a civil penalty of $500 for each violation.  A first-time offender may avoid having to pay the penalty if they “attend an appropriate training session” about the ordinance.

Covered employers should review their job postings and ads to ensure they do not state or imply that an individual’s criminal history automatically disqualifies them from consideration for employment.  In addition, employers should remove any questions about a job applicant’s criminal history from their existing application forms.

Ken Knox is a partner in the Fort Lauderdale office where he represents employers in all types of state and federal court litigation, including claims of unlawful discrimination, harassment, retaliation, and wage and hour. He also represents private- and public-sector employers in connection with labor law issues before the NLRB and represents employers in administrative matters involving OSHA.