In 2014, the Tennessee legislature passed the “Certificate of Employability” statute making it easier for ex-convicts to obtain employment and for employers to hire them.
The statute was added to Tennessee’s existing “Restoration of Citizenship” plan which allows ex-convicts to petition the court to restore their citizenship rights.The problem addressed by the new statute is that restored citizenship rights do not make ex-convicts employable, especially when employers can be sued for wrongful acts committed by ex-con employees. For example, in one case an employer was found liable for negligently hiring and supervising two ex-convict bouncers who severely beat a customer. That court stated that, “an employer who hires two ex-convicts . . . and entrusts to them the job of forcibly ejecting patrons, has a duty to exercise reasonable care to avoid harm to those patrons . . . .”
The addition to Tennessee’s Restoration of Citizenship plan now allows ex-convicts to petition the court for a “Certificate of Employability,” a statement that the ex-convict has met conditions demonstrating rehabilitation and making him or her employable. The ex-convict may receive a Certificate of Employability if:
- the ex-convict has maintained a character of honesty, respectability, and veracity and is generally considered as such by his neighbors;
- granting the petition will assist the ex-convict in obtaining employment or occupational licensing;
- the ex-convict has a substantial need for the certificate of employability in order to live a law-abiding life; and
- granting a certificate of employability would not pose an unreasonable risk to the public’s safety.
The new statute also helps ex-convicts obtain trade-related licenses or certificates, such as a real estate license, which would otherwise be denied due to criminal history. Beginning on January 1, 2015, Tennessee government agencies may not deny a trade-related license or certificate to an ex-convict who obtains a Certificate of Employability based solely on the ex-convict’s past criminal record. Two exceptions to this rule are (1) if the agency requires a certain amount of time between the commission of the offense and employment, and (2) if the nature of the crime has a direct bearing on the ex-convict’s fitness or ability to perform the job for which the license or certificate sought.
To encourage employment of ex-convicts, the new statute also grants employers immunity from claims of negligent hiring, retention and supervision if the employer knows of the ex-convict’s Certificate of Employment at the time of hiring. Under the language of the statute, immunity is not granted to an employer who hires an ex-convict with a Certificate of Employability if the employer was not aware of the Certificate of Employability.
Also, under the new statute, an employer is not immune from suit for negligently retaining an ex-convict with a Certificate of Employability, if the employer has actual post-hire knowledge that the ex-convict is dangerous or is convicted of new felony and the employer willfully retains the ex-convict as an employee.
Tennessee’s Certificate of Employability statute attempts to balance competing interests in protecting the public and employing rehabilitated criminals. As the Colorado Supreme said, “[w]hile it is true that a criminal who pays his debt to society may deserve a second chance, we must not forget the employer’s ability to protect innocent third parties from foreseeable harm . . . On the one hand, the innocent victim lacks the ability to control the employee while the employer possesses the power of selection . . . On the other hand, there are countervailing policies favoring the employment of rehabilitated ex-convicts.”
Tennessee employers hiring ex-convicts should take advantage of the immunity protection the new statute provides by requiring new employees to first obtain a Certificate of Employability.