What is a Level Two Background Check?
What Is a Level Two Background Check?
In Florida, a “Level 2 Background Check” refers to specific standards outlined in Florida Statute s. 435.04 for screening the backgrounds of individuals seeking employment or volunteer opportunities in certain fields, such as child care and healthcare.
A Level 2 Background Check begins with the submission of electronic fingerprints to the Florida Department of Law Enforcement (“FDLE”). A criminal history record check will be conducted both statewide (through the FDLE) and nationwide (through the FBI). A Level 2 Background Check will also search local criminal records through local law enforcement agencies. The background check will also search sexual predator and offender registries in any state where you have lived in the last five (5) years.
These background checks are looking for criminal records relating to specific offenses outlined in Florida Statute s. 435.04(2), including, but not limited to, sexual or violent offenses (ie. homicide, manslaughter, felony assaults and batteries, kidnapping, arson ), burglaries, firearm offenses, vehicular homicide, felony thefts, human trafficking, abuse/neglect of a child or elder, resisting an officer with violence, escape, or felony drug offenses. (Refer to s. 435.04(2) for a complete list). An employer that participates in the Medicaid program (for example, many hospitals) will also search for criminal records associated with Medicaid/Medicare fraud, patient abuse/neglect, any financial misconduct, obstruction of criminal investigations, public record or corruption offenses, and any offense of “moral turpitude” punishable by more than one year. A full list of these offenses can be found in Florida Statute s. 435.04(4). Note that an attempt, solicitation or conspiracy to commit any of the listed offenses will also be considered disqualifying.
You will “fail” a Level 2 Background check if your record shows an arrest awaiting disposition (an open case), a guilty verdict, a guilty or no contest plea, or an adjudication of delinquency, for any of the disqualifying offenses. If your record has been sealed or expunged and is an adult record, it may still be disqualifying.
Criminal records from other states involving offenses “substantially similar” to a disqualifying offense will also be considered disqualifying. Generally, in determining whether an out-of-state offense is “substantially similar”, an attorney would compare the elements of the offense, and not rely upon the name of the offense.
If your Level 2 Background Check does not reveal any disqualifying history, you will “pass” the background screening. If you do have a disqualifying offense on your record, you will “fail” the Level 2 Background Check.
Exemptions from Disqualification
If you are disqualified by a Level 2 Background Check, you may be eligible for an exemption from disqualification under Florida Statute s. 435.07. The exemption will be considered by the “appropriate agency”. So, for example, if you are applying for a position in a childcare facility, the Department of Children and Families (DCF) will process your application for exemption.
In order to qualify for an exemption, at least two years must have elapsed since you finished the sentence (including probation) for a disqualifying felony or delinquency adjudication for an offense that would be a felony if committed by an adult; for misdemeanors, you must only have finished the sentence. You must also demonstrate that you have paid any fees, fines, restitution, or costs of prosecution associated with the disqualifying offense(s).
To successfully petition for an exemption, you must demonstrate rehabilitation since the time of your offense. It is your burden to demonstrate rehabilitation through clear and convincing evidence. The agency will consider the circumstances surrounding the relevant criminal incident(s), the time that has passed, the nature of harm caused to any victim, and your history since that incident (including subsequent arrests for non-disqualifying offenses). Overall, the agency is required to determine whether you will present a danger in the context of your proposed employment if granted an exemption.
Offenses Not Eligible for Exemption
Certain disqualifying offenses are not eligible for exemptions and will preclude your employment in a place requiring Level 2 Background Clearance. These offenses include those who qualify as sexual predators or offenders, or career offenders (defined by Florida Statute s. 775.261).
A person is disqualified from employment as child care personnel, and may not seek an exemption, if they have a conviction for certain violent offenses, including, but not limited to, domestic violence, murder, aggravated battery or assault, kidnapping, or sex offenses. (See Florida Statute s.435.07(4)(1)(c) for a full list)
Do I Need a Lawyer?
While you do not need a lawyer to seek an exemption, it can be helpful to have assistance in navigating the process. It is common for an individual to seek our assistance after their request for an exemption has been denied. In many of those instances, it is clear that the initial result may have been different with legal guidance. The relevant statutes and rules are complicated, and it can be difficult to understand exactly what kind of information is helpful or relevant to submit.
If you have questions about a Level 2 Background Check, or a request for an exemption, contact Lori Wurtzel for a free initial consultation.