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It’s sometimes OK to ask about expunged records

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in Discrimination and Harassment,Hiring,Human Resources

Often it’s difficult to tell if job applicants have had run-ins with the criminal justice system. Florida’s criminal court dockets are so overloaded that some relatively minor offenses are never tried. And courts often expunge arrest records so people who were charged but never convicted can move on without the shadow of a criminal record hanging over them, affecting their ability to work.

However, in Florida, some employers can still ask about expunged criminal records—and fire or refuse to hire those who don’t volunteer the information when asked.

Recent case: Ralph Irwin holds a Florida teacher’s license. Back in 1998, he got into an argument with his 19-year-old daughter and slammed a door on her foot. She called police and he was arrested. Later, the state dropped the charges and Irwin’s record was expunged.

He then applied for several teaching jobs, but did not disclose the arrest even when asked about expunged records. He was rejected or fired after being hired several times because of “dishonesty” on his application.

He sued, alleging that he should not be required to disclose the minor arrest. The court disagreed, pointing out that Florida law specifically states that an individual’s right to ignore arrest or expungement questions on an employment application does not extend to either teacher licensing or applications to work at schools or day care centers. (Irwin v. Miami-Dade County Public Schools, No. 09-11522, 11th Cir., 2010)

Final note: The use of criminal records in hiring is a hot topic today. The EEOC says blanket bans on hiring people with criminal records may be race discrimination. Consult your attorney before using criminal records as a bar to employment. He or she can explain the risks and your obligations under federal and Florida laws.

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