Background Checks CUHRE_APAC 2019 Conference

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

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 Provide Chapter 435 list as a handout

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

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 Note that the employee attestation is when an employee and not an application.. Need to think about where this would be included in the process.

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 The answer is yes for 2 reasons. The EEOC does NOT consider state law required exclusions as a way to avoid Title VII liability. The exclusionary practices must be job related & consistent with business necessity. Should also periodically review the results for potential disparate impact and correct as necessary. Second go to next slide

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 Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.

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 Failure to abide by pre-existing rules and regulations established by state and federal law, including regulations and requirements presented during the application process, may result in federal and/or state action against the account holder(s).

Procedures-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

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

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

FL SUS Background Check Group Level/Title Name FAMU Director Sandi Smith-Anderson Coordinator Walter Leslie FAU Manager Veronica Brokate FGCU Asst Dir Kathleen Nagle-Roides FIU Gail Hansen BGC Coordinator Monica Reyes Emmanuele Archange Bowles FPU Assoc. Director Deane Doll FSU BGC Manager Andrew Kapec HR Specialist Ashlee Wright NCF Ronald Hambrick UCF Assoc Dir Millicent Downer Renee Grigor Tal Acq Mngr Jaclyn Velez UF John Sun UNF Carrie Guth Calena Gray Stefanie Levine USF Cerise Mullings UWF April Harvey   Mary Claridge