Level 1 and 2 Background Check

Florida Employment Background Screenings

Relating to Expungements and Sealings of Records

Many people are confused about the interactions between Chapter 435, dealing with background screenings (background check) for employment, and sections 943.0585 (expungements) and 943.059 (sealings). The main question is what effect does an expunged or sealed record have on Level 1 or Level 2 state law required background screenings and do you have to disclose the expunged or sealed record.

In order to find the answers to these questions we will need to first understand the laws that comprise these issues regarding the background check and record sealing.

Chapter 435 – Employment Background Screenings

First, we need to understand how chapter 435 works. Section 435.01 points out that Chapter 435 is applicable for screening potential employees who are required to pass background screenings (background check) by law. The definitions (found under section 435.02) define “employer” as any person or entity “required by law to conduct screening of employees pursuant to this chapter.”

Listed Agencies for the Background Check

The employers required to conduct employee background screenings pursuant to Chapter 435 are not specifically identified however, section 435.02 does give us an idea on what type of employers would be required to do these background screenings. “Agency” is defined as any state, county, or municipal agency “that grants licenses . . . permitting the operation of an employer[.]” It further defines “specified agency” as the following:

  • Department of Health
  • Department of Children and Families
  • Division of Vocational Rehabilitation
  • Department of Education
  • Agency for Health Care Administration
  • Department of Elderly Affairs
  • Department of Juvenile Justice
  • Agency for Persons with Disabilities
  • Local Licensing Agencies approved pursuant to section 402.307
  • See, Chapter 402 – Health and Human Services; Miscellaneous Provisions

From this list we can get an idea of the types of employers that are required by law to perform the type of background screenings on potential employees required by Chapter 435. Businesses in the service field that deal directly with children, the elderly, the mentally or physically disabled, and health care services in general seemed to be the types of businesses (employers) required to perform these background screenings on potential employees.

The Two Types of Background Screenings; Level 1 Screening and Level 2 Screening

There are two types of employment background check; Level 1 and Level 2. I will start out by breaking down each screening into understandable language, then I will point out their differences.

Level 1 screening is found under section 435.03, Florida Statutes. It as three subsections:

(1) All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

(2) Any person required by law to be screened pursuant to this section must not have an arrest awaiting final disposition, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

(3) The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

Breakdown of Level 1 Background Check

When breaking down this statutory language note the words “by law.” This signifies that these background screenings are only appropriate for people seeking employment with entities that are required to perform these screenings. As is usual of legislative language, basic grammatical rules don’t see to apply. Therefore, I like to deconstruct the language for better understanding.
Subsection (1):

All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to,

employment history checks and

statewide criminal correspondence checks

through the Department of Law Enforcement, and

a check of the Dru Sjodin National Sex Offender Public Website, and

may include local criminal records checks through local law enforcement agencies.

Subsection (1) let’s us know what a Level 1 screening consists of, however – the words “not limited to” suggests that further screening that is more in depth is a possibility. With that in mind, this should be considered a list of the minimal amount of screening required for employment which requires a Level 1 screening.
Subsection 2:

Any person required by law to be screened pursuant to this section must not have:

an arrest awaiting final disposition,

must not have been found guilty of, . . .

and must not have been adjudicated delinquent

and

the record has not been sealed or expunged for,

any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

I have removed some of the language because “being found guilty of” encompasses all types of adult adjudications and types of pleas. An interesting point occurs with the next line “must not have been adjudicated delinquent.” This refers to Juvenile cases and the absence of language discriminating between types of adjudications seems to suggest that a juvenile offense in which the adjudication of delinquency is “withheld” is not a bar to employment.
The next line is of greatest concern. The statute states what a potential employee cannot have on his or her record. The following line, with the conjunction “and,” states “the record has not been sealed or expunged for” any offense prohibited by section 435.04(2). This is confusing because it is hard to discern the point being made (is a sealed or expunged record a bar to employment or not?) without a full understanding of the sealing and expungement statutes.
The first thing to understand regarding expungements is that charges stemming from an arrest has to be dropped (dismissed, abandoned, etc.) or has had to been sealed for at least 10-years in order to qualify to be expunged. Arrests where the charges are dropped are not a concern according to the language of the statute.
In order to have an arrest sealed the defendant would have been found guilty of the offense and the adjudication must be withheld. The Level 1 screening statute contemplates this when it states that the potential employee must not have been found guilty of offenses prohibited under 435.04(2) “regardless of adjudication.” Since a dropped case is of no consequence to the statute, the reference to expunged record must be concerning a record originally sealed for 10-years and then expunged.

Therefore, a record of an offense listed under 435.04(2) that has been sealed would not be a bar to employment when the language “the record has not been sealed or expunged for” is interpreted correctly. The conclusion must be that the conjunction “and” and the language “the record has not been sealed or expunged for” would be clearer if it read “unless the record has been sealed or expunged for.”

Requirements For Sealing May Provide a Bar to Employment

The requirements to have a record sealed are different from having a record expunged. In particular, a record sought to be sealed must have the adjudication withheld and, the charges of which the defendant is found guilty, cannot be prohibited by section 943.059, Florida Statutes. The list of prohibited offenses is long. This brings up section 435.04(2), which is the list of offenses that a potential employee cannot have been found guilty of in the Level 1 (or Level 2) screening. By comparing the two lists we have a better understanding of which offenses in section 435.04(2) could be sealed and not a bar to employment.

Comparison of s. 435.04(2) and s. 943.059(first paragraph), F.S.
Placing overlapping statutory references in section 435.04(2) with prohibited offenses in section 943.059, side-by-side. If statute is not prohibited by s. 943.059, then sealing the record may allow potential employee to qualify for employment.

Section 435.04(2) Section 943.059
s. 393.135, F.S. s. 393.135, F.S.
s. 394.4593, F.S. s. 394.4593, F.S.
s. 415.111, F.S. Not prohibited from sealing
s. 782.04, F.S. Homicide
s. 782.07, F.S. s. 782.07, F.S.
s. 782.071, F.S. Homicide
s. 782.09, F.S. Homicide
All Chapter 784 Felony Offenses s. 784.021 and 784.045, F.S.
s. 784.011, F.S. if minor victim Not prohibited from sealing
s. 784.03, F.S. if minor victim Not prohibited from sealing
s. 787.01, F.S. Kidnapping
s. 787.02, F.S. Not prohibited from sealing
s. 787.025, F.S. s. 787.025, F.S.
s. 787.04(2), F.S. Not prohibited from sealing
s. 787.04(3), F.S. Not prohibited from sealing
s. 790.115(1), F.S. Not prohibited from sealing
s. 790.115(2)(b), F.S. Not prohibited from sealing
s. 794.011, F.S. Sexual Battery
(former)s. 794.041, F.S. Sexual Battery
s. 794.05, F.S. Sexual Battery
Chapter 796 Not prohibited from sealing
s. 798.02, F.S. Not prohibited from sealing
Chapter 800 s. 800.04, F.S.
s. 806.01, F.S. Arson
s. 810.02, F.S. Burglary of Dwelling
s. 810.14, F.S. (if felony) s. 810.14, F.S.
s. 810.145, F.S. (if felony) Not prohibited from sealing
Chapter 812 (if felony) Robbery
s. 817.563, F.S. (if felony) Not prohibited from sealing
s. 825.102, F.S. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 825.1025, F.S. s. 825.1025, F.S.
s. 825.103, F.S. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
s. 826.04, F.S. Not prohibited from sealing
s. 827.03, F.S. Child Abuse
s. 827.04, F.S. Not prohibited from sealing
(former)s. 827.05, F.S. Not prohibited from sealing
s. 827.071, F.S. s. 827.071, F.S.
s. 843.01, F.S. Not prohibited from sealing
s. 843.025, F.S. Not prohibited from sealing
s. 843.12, F.S. Not prohibited from sealing
s. 843.13, F.S. Not prohibited from sealing
Chapter 847 s. 847.0133, s. 847.0135, s. 847.0145, F.S.
s. 874.05, F.S. Not prohibited from sealing
Chapter 893 (if felony or if any other person involved was minor) s. 893.135, F.S. and Manufacturing any substances in violation of chapter 893
s. 916.1075, F.S. s. 916.1075, F.S.
s. 944.35(3), F.S. Not prohibited from sealing
s. 944.40, F.S. Not prohibited from sealing
s. 944.46, F.S. Not prohibited from sealing
s. 944.47, F.S. Not prohibited from sealing
s. 985.701, F.S. Not prohibited from sealing
s. 985.711, F.S. Not prohibited from sealing

As can be discerned from the table above, many of the offenses that would prohibit a potential employee from employment are also prohibited from being sealed by section 943.059, Florida Statutes. However, some are not and this seems to confirm that subsection 2 (of section 435.03) allows for the employment of individuals that have had their record sealed even if it is a specified offense found in Chapter 435.
Subsection 3: (The Domestic Violence Bar to Employment)
Subsection 3 refers to a potential employee being found guilty of any act of domestic violence. Any act of domestic violence, where the defendant has been found guilty, cannot be sealed and, therefore, effectively bars employment.

Breakdown of Level 2 Background Check

Level 2 background check is very similar to Level 1 background check. It is more extensive.
435.04 Level 2 screening standards.—

(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

. . .

(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction[.]

The level 2 background check differs only in the minimal screening standards. Unlike a Level 1 background check, a Level 2 screening requires the taking of fingerprints and a “national criminal history records checks through the Federal Bureau of Investigation.” The prohibited offenses are the same as those listed above.

What a Potential Employee Must Disclose

Potential employees are legally bound to be truthful on all applications for employment. A person who has had their arrest record sealed has an option. Once a person has their record sealed he/she may “lawfully deny or fail to acknowledge the arrests covered by the sealed record” for employment purposes, among others. See. s. 943.059(4)(a), Fla. Stat. The exceptions to this ability to lawfully deny an arrest are broad when it comes to employment areas. Specifically, the statute states:

Section 943.059(4), Florida Statutes

[s. 943.059](4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal history record of a minor or an adult which is ordered sealed by a court pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject’s attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., 8., 9., and 10. for their respective licensing, access authorization, and employment purposes.

(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

1. Is a candidate for employment with a criminal justice agency;

2. Is a defendant in a criminal prosecution;

3. Concurrently or subsequently petitions for relief under this section, s. 943.0583, or s. 943.0585;

4. Is a candidate for admission to The Florida Bar;

5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of Vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration, the Agency for Persons with Disabilities, the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly;

6. Is seeking to be employed or licensed by the Department of Education, a district school board, a university laboratory school, a charter school, a private or parochial school, or a local governmental entity that licenses child care facilities;

7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history check under state or federal law;

8. Is seeking to be licensed by the Division of Insurance Agent and Agency Services within the Department of Financial Services;

9. Is seeking to be appointed as a guardian pursuant to s. 744.3125; or

10. Is seeking to be licensed by the Bureau of License Issuance of the Division of Licensing within the Department of Agriculture and Consumer Services to carry a concealed weapon or concealed firearm. This subparagraph applies only in the determination of an applicant’s eligibility under s. 790.06.

(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person’s failure to recite or acknowledge a sealed criminal history record.

If we review the “listed agencies” in s. 435, above, we will find some similarities with the agencies listed is s. 943.059. In the sealing statute, the listed agencies are as follows:

  • Criminal Justice Agency
  • The Florida Bar
  • Department of Children and Families
  • The Division of Vocational Rehabilitation within the Department of Education
  • The Agency for Health Care Administration
  • The Agency for Persons with Disabilities
  • The Department of Health
  • The Department of Elderly Affairs
  • The Department of Juvenile Justice
  • The Department of Education
  • The Division of Insurance Agent and Agency Services within the Department of Financial Services

The law states that when a person seeks direct employment, employment as a contractor, or licensing to work through these agencies he or she must disclose the record of arrest. This statute differs from 435 above, in that it is not a bar to employment. It only requires disclosure even if the record has been sealed.

Conclusions

The conclusions we seek are what effect would sealing an arrest record have on a person seeking employment with an entity that requires a Level 1 or Level 2 background check and would a sealed record have to be disclosed.

It seems the language of sections 435.03 and 435.04, Florida Statutes, would remove the bar to employment for those arrests that are “not prohibited from sealing” and the arrest has been sealed. We can conclude that sealing an arrest record may help in obtaining employment with such entity.

Section 943.059, Florida Statutes, that governs the sealing of records, will require the truthful disclosure of any sealed arrests to those agencies that require the Level 1 and Level 2 background screenings. Here we may conclude that even if the record is sealed a person seeking employment with one of these entities would still be required to disclose the details of the arrest.


Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

If any corrections or errors are found please notify me as soon as possible.

has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located online in Orlando, FL. He provides representation for sealing and expunging criminal records throughout the state of Florida.

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