Florida Senate - 2014 CS for SB 324 By the Committee on Commerce and Tourism; and Senator Detert 577-00794-14 2014324c1 1 A bill to be entitled 2 An act relating to employment practices; creating s. 3 448.071, F.S.; providing definitions; prohibiting an 4 employer from using a job applicant’s credit report or 5 credit history to make certain hiring, compensation, 6 or other employment decisions; providing specific 7 situations in which an employer may use such 8 information; providing exemptions for certain types of 9 employers; providing remedies for an aggrieved person; 10 providing for the award of actual damages and court 11 costs; providing for a plaintiff to post a bond to 12 indemnify the defendant for damages, including 13 attorney fees, in certain situations; providing an 14 effective date. 15 16 Be It Enacted by the Legislature of the State of Florida: 17 18 Section 1. Section 448.071, Florida Statutes, is created to 19 read: 20 448.071 Use of a job applicant’s credit report or credit 21 history.— 22 (1) As used in this section, the term: 23 (a) “Managerial” means a position that requires an employee 24 to formulate and carry out management policies by expressing and 25 making operative the decisions of the employer. 26 (b) “Supervisory” means a position in which an employee has 27 the authority, in the interest of the employer, to hire, 28 transfer, suspend, lay off, recall, promote, discharge, assign, 29 reward, or discipline other employees, or the responsibility to 30 direct them, adjust their grievances, or recommend such action 31 where such authority or responsibility is not merely routine or 32 clerical, but requires the use of independent judgment. 33 (2) An employer may not use an applicant’s credit report or 34 credit history to deny employment to the applicant or to 35 determine the applicant’s compensation or the terms, conditions, 36 or privileges of employment. 37 (3) Notwithstanding subsection (2), an employer may request 38 or use an applicant’s credit report or credit history if all of 39 the following conditions are met: 40 (a) The information in the credit report or credit history 41 will be used for a purpose other than one prohibited under 42 subsection (2). 43 (b) The employer notifies the applicant of the employer’s 44 ability to request or use the applicant’s credit report or 45 credit history, and the employer obtains permission from the 46 applicant to request such information. 47 (c) The employer has a bona fide purpose for requesting or 48 using information in the credit report or credit history which 49 is substantially related to the position. 50 (4) For purposes of this section, a position for which an 51 employer has a bona fide purpose includes a position that: 52 (a) Is managerial or supervisory; 53 (b) Involves access to personal information of a customer, 54 employee, or employer, other than personal information 55 customarily provided in a retail transaction; 56 (c) Involves a fiduciary responsibility to the employer, 57 including the authority to issue payments, collect debts, 58 transfer money, or enter into contracts; 59 (d) Involves the use of an expense account or a corporate 60 debit or credit card; 61 (e) Authorizes the employee to have access to information, 62 including a trade secret, formula, pattern, compilation, 63 program, device, method, technique, or process, which derives 64 actual or potential independent economic value from not being 65 generally known to, and not being readily ascertainable by 66 proper means by, other persons who can obtain economic value 67 from the disclosure or use of the information and which is the 68 subject of efforts that are reasonable under the circumstances 69 to maintain its secrecy; or 70 (f) Involves public safety, such as a law enforcement 71 officer, peace officer, or other position involving enforcement 72 of state or federal criminal laws. 73 (5) This section does not apply to an employer that is any 74 of the following: 75 (a) An entity that is expressly authorized or required to 76 inquire into an applicant’s credit report or credit history for 77 employment purposes pursuant to a federal or state law. 78 (b) A financial institution that accepts deposits that are 79 insured by a federal agency or an affiliate or subsidiary of the 80 financial institution. 81 (c) A credit union or a state-chartered bank that is 82 registered with the Office of Financial Regulation. 83 (d) An entity that is registered as an investment advisor, 84 broker, or dealer with the United States Securities and Exchange 85 Commission, the Office of Financial Regulation, or the Financial 86 Industry Regulatory Authority, or an affiliate of the entity. 87 (6) In addition to any other remedy provided by law, a 88 person aggrieved by a violation of this section may bring an 89 action to obtain a declaratory judgment that an act or practice 90 violates this section and to enjoin the violator from continuing 91 such act or practice. 92 (7) A person who has suffered a loss as a result of a 93 violation of this section and prevails may recover actual 94 damages plus court costs. 95 (8) In an action brought under this section, upon motion of 96 the defendant alleging that the action is frivolous, without 97 legal or factual merit, or brought for the purpose of 98 harassment, the court may, after hearing evidence as to the 99 necessity of the action, require the plaintiff to post bond in 100 an amount that the court finds reasonable to indemnify the 101 defendant for any damages incurred, including reasonable 102 attorney fees. This subsection does not apply to an action 103 initiated by an enforcing authority. 104 Section 2. This act shall take effect July 1, 2014.