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.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Section 448.071, Florida Statutes, is created to
   19  read:
   20         448.071Use 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.