A lot of people are concerned about how a criminal history record will affect them as it relates to their employment. Can they be fired, will they lose the promotion, what can they do to hide their criminal record from their employer.

Caveat Regarding This Post

This post only deals with Florida state government employees. The laws only apply to what government can do to government employees. They cannot tell what private companies can do to their employees that have a criminal record. In previous posts I talked about the Level 1 and Level 2 Background Checks. You should read up on that when you get the chance.

The Impact of a Criminal History Record on Your Employment

I’m an attorney and I help people expunge their criminal record. That means I help people hide their criminal record. The biggest concern I get is how a criminal record will impact their employment. Hopefully, this post will shed some light on this topic.

Florida Law and Your Job

The Florida Statutes (that can be found online) actually have some protections for people who have a criminal record. Below I go through the pertinent ones with comment.

Convicted or Not Convicted

I use the term “criminal record” or “criminal history record” while the statutes use the word “conviction.” A strict interpretation of the word “conviction” under Florida law means that a court found a person guilty of a crime and adjudicated the person guilty. Florida law allows a court to find someone guilty of a crime and “withhold” the adjudication of guilt and this is typically not a conviction.

However, often times the legislature redefines the term “conviction” within specific statutes to include instances where a court “withheld” the adjudication. An example of this is the following language:

“Convicted” means a finding of guilt or the acceptance of a plea of guilty or nolo contendere, in any federal or state court or a court in any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Section 633.412(2), Florida Statutes (as it relates to firefighter qualifications).

Therefore, I use criminal history record or simply criminal history, pointing out that any arrest on your criminal history record could impact your ability to obtain a state issued license or a state, county, or municipal job.

Specific Jobs, Specific Statutes

Note also that specific jobs may have specific statutes that govern the employment requirements and restrictions. Firefighters are an example of this, as noted above. Unfortunately, I cannot include all these statutes within this post. In the future I may focus on specific employment areas, such as Teacher Qualifications that I previously wrote about.

Florida Statutes Regarding Employment

I will be reviewing the following Florida Statutes sections; 112.011, 125.5801, 166.0442, and 775.16. My comments are in normal text.

112.011 Disqualification from licensing and public employment based on criminal conviction.—
(1)(a) Except as provided in s. 775.16 (see below), a person may not be disqualified from employment by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person may be denied employment by the state, any of its agencies or political subdivisions, or any municipality by reason of the prior conviction for a crime if the crime was a felony or first-degree misdemeanor and directly related to the position of employment sought.

The language of this section needs to be clarified because it can easily be misconstrued. The first takeaway that you must understand is the use of the phrases “may not be disqualified” and “may be denied.” An initial reading of this section may lead you to believe that a prior conviction is no bar to employment. However, all this section is really saying is that a past arrest cannot be the sole reason for barring employment. The language “directly relating to the position of employment sought” is telling us that other statutes that relate to the specific employment or license sought will be the authority on the standards for employment in that specific field.

Second degree misdemeanors would seem to not be a bar to employment, but again, specific statutes may include them.

(b) Except as provided in s. 775.16, a person may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first-degree misdemeanor that is directly related to the standards determined by the regulatory authority to be necessary and reasonably related to the protection of the public health, safety, and welfare for the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.

Here the statute is clarifying the fact that specific employment may have specific standards that will pre-empt this section. This means your criminal history record can be used to prevent your employment or licensing in specified areas. See below regarding the reference to s. 775.16, Fla. Stat.

(c) Notwithstanding any law to the contrary, a state agency may not deny an application for a license, permit, certificate, or employment based solely on the applicant’s lack of civil rights. However, this paragraph does not apply to applications for a license to carry a concealed weapon or firearm under chapter 790.

This subsection simply points out that the lack of civil rights (felony were the court adjudicated the defendant guilty) cannot be the sole basis for barring employment.

(2)(a) This section does not apply to any law enforcement or correctional agency.

(b) This section does not apply to the employment practices of any fire department relating to the hiring of firefighters.

(c) This section does not apply to the employment practices of any county or municipality relating to the hiring of personnel for positions deemed to be critical to security or public safety pursuant to ss. 125.5801 and 166.0442.

Some exceptions but not all. Seeking a state issued license in any field should be researched beyond this section.

(3) Any complaint concerning the violation of this section shall be adjudicated in accordance with the procedures set forth in chapter 120 for administrative and judicial review.

This just tells us that cases arising from this section are handled under administrative law procedures.

History.—ss. 1, 2, 3, ch. 71-115; s. 1, ch. 73-109; s. 20, ch. 81-24; s. 30, ch. 88-122; s. 1, ch. 90-266; s. 678, ch. 95-147; s. 3, ch. 2002-169; s. 3, ch. 2011-207; s. 90, ch. 2013-183.

125.5801 Criminal history record checks for certain county employees and appointees.—
(1) Notwithstanding chapter 435, a county may require, by ordinance, state and national criminal history screening for:

(a) Any position of county employment or appointment, whether paid, unpaid, or contractual, which the governing body of the county finds is critical to security or public safety;

(b) Any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the county; or
(c) Any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the county finds that preventing unsuitable persons from having such contact or access is critical to security or public safety.

(2) The ordinance must require each person applying for, or continuing employment or appointment in, any such position, applying for initial or continuing licensing or regulation, or having such contact or access to be fingerprinted. The fingerprints shall be submitted to the Department of Law Enforcement for a state criminal history record check and to the Federal Bureau of Investigation for a national criminal history record check. The information obtained from the criminal history record checks conducted pursuant to the ordinance may be used by the county to determine a person’s eligibility for such employment or appointment and to determine a person’s eligibility for continued employment or appointment. This section is not intended to preempt or prevent any other background screening, including, but not limited to, criminal history record checks, which a county may lawfully undertake.
History.—s. 1, ch. 2002-169; s. 1, ch. 2013-116.

Certain public employment requires a criminal history check. I discuss this in my post regarding Level 1 and Level 2 Background Checks. Chapter 435 governs these background checks. This tells us that a county can require criminal history background checks that the county finds “is critical to security or public safety.” The standard for what is critical to security or public safety is left to the county to determine.

166.0442 Criminal history record checks for certain municipal employees and appointees.—
(1) Notwithstanding chapter 435, a municipality may require, by ordinance, state and national criminal history screening for:
(a) Any position of municipal employment or appointment, whether paid, unpaid, or contractual, which the governing body of the municipality finds is critical to security or public safety;
(b) Any private contractor, employee of a private contractor, vendor, repair person, or delivery person who is subject to licensing or regulation by the municipality; or
(c) Any private contractor, employee of a private contractor, vendor, repair person, for-hire chauffeur, or delivery person who has direct contact with individual members of the public or access to any public facility or publicly operated facility in such a manner or to such an extent that the governing body of the municipality finds that preventing unsuitable persons from having such contact or access is critical to security or public safety.

(2) The ordinance must require each person applying for, or continuing employment or appointment in, any such position, applying for initial or continuing licensing or regulation, or having such contact or access to be fingerprinted. The fingerprints shall be submitted to the Department of Law Enforcement for a state criminal history record check and to the Federal Bureau of Investigation for a national criminal history record check. The information obtained from the criminal history record checks conducted pursuant to the ordinance may be used by the municipality to determine a person’s eligibility for such employment or appointment and to determine a person’s eligibility for continued employment or appointment. This section is not intended to preempt or prevent any other background screening, including, but not limited to, criminal history background checks, that a municipality may lawfully undertake.
History.—s. 2, ch. 2002-169; s. 2, ch. 2013-116.

This is similar to the above noted section except it applies to municipalities.

775.16 Drug offenses; additional penalties.—
In addition to any other penalty provided by law, a person who has been convicted of sale of or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, if such offense is a felony, or who has been convicted of an offense under the laws of any state or country which, if committed in this state, would constitute the felony of selling or trafficking in, or conspiracy to sell or traffic in, a controlled substance under chapter 893, is:
(1) Disqualified from applying for employment by any agency of the state, unless:
(a) The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Florida Commission on Offender Review, or by law; or
(b) The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanctions.

Simply put, an offense for selling or trafficking (possessing an amount set by statute) on a person’s background will require that all court conditions be completed before that person can apply for employment (so long as this background is not prohibited by a more specific statute).

The person under supervision may:
1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved by the Department of Children and Families, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:
a. The court, in the case of court-ordered supervisory sanctions;
b. The Florida Commission on Offender Review, in the case of parole, control release, or conditional release; or
c. The Department of Corrections, in the case of imprisonment or any other supervision required by law.

2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections.

(2) Disqualified from applying for a license, permit, or certificate required by any agency of the state to practice, pursue, or engage in any occupation, trade, vocation, profession, or business, unless:
(a) The person has completed all sentences of imprisonment or supervisory sanctions imposed by the court, by the Florida Commission on Offender Review, or by law;
(b) The person has complied with the conditions of subparagraphs 1. and 2. which shall be monitored by the Department of Corrections while the person is under any supervisory sanction. If the person fails to comply with provisions of these subparagraphs by either failing to maintain treatment or by testing positive for drug use, the department shall notify the licensing, permitting, or certifying agency, which may refuse to reissue or reinstate such license, permit, or certification. The licensee, permittee, or certificate holder under supervision may:
1. Seek evaluation and enrollment in, and once enrolled maintain enrollment in until completion, a drug treatment and rehabilitation program which is approved or regulated by the Department of Children and Families, unless it is deemed by the program that the person does not have a substance abuse problem. The treatment and rehabilitation program may be specified by:
a. The court, in the case of court-ordered supervisory sanctions;
b. The Florida Commission on Offender Review, in the case of parole, control release, or conditional release; or
c. The Department of Corrections, in the case of imprisonment or any other supervision required by law.
2. Submit to periodic urine drug testing pursuant to procedures prescribed by the Department of Corrections. If the person is indigent, the costs shall be paid by the Department of Corrections; or

(c) The person has successfully completed an appropriate program under the Correctional Education Program.

Starting with subsection (2) above, a person must complete all sanctions/requirements of the court for being found guilty of selling or trafficking in (possessing an amount set by statute) before he/she can apply for a trade license.

The provisions of this section do not apply to any of the taxes, fees, or permits regulated, controlled, or administered by the Department of Revenue in accordance with the provisions of s. 213.05.
History.—s. 2, ch. 90-266; s. 21, ch. 92-310; s. 13, ch. 95-325; s. 292, ch. 99-8; s. 296, ch. 2014-19; s. 14, ch. 2014-191.

After a review of these statutes, it seems clear that the language prevents public entities from barring employment solely on the basis of a prior arrest and finding of guilt. However, other statutes that address specific types of employment, e.g., teaching, firefighting, law enforcement, will control and have priority in the employment decision process.

Language Can Be Misleading to Layperson

The language of these statutes can be misleading to the layperson who is seeking employment and who has a criminal history record. It is therefore important to understand that state issued licenses typically have their own statutes governing the requirements for issuing the license. Additionally, employment with a state, county, or municipality may require a criminal history background check based on the discretion of those governmental entities.

How Does This Affect Expunging or Sealing

How does this affect a person’s decision whether or not to expunge or seal their arrest record? Often times, people seeking to expunge or seal their arrest record do not disclose to their attorney that they are seeking a license or employment. When the expungement or sealing is completed they then find out that it has had no effect in their pursuits. This can lead to some arguments with their attorney (as to why they paid to have their record expunged or sealed).

It should be asked of all potential clients what the purpose is for their desire to have their record expunged or sealed. It should also be disclosed that the expungement or sealing of their record may not be the cure that they seek (see Entitled Entities on FDLE’s website). However, it should also be pointed out that expunging or sealing their record should be done regardless of their current situation due to the time it takes to complete and protections it does offer even if it means the person may have to seek a different vocation.

Additional Information

An Arrest, Background Check, and Your Job

The Effect of a Pardon

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For More Information Emailed to You

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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.

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

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