In 2014, the Tennessee legislature passed the “Certificate of Employability” statute[1] 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.[2]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.[3] 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 . . . .”[4]

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:

  1. the ex-convict has maintained a character of honesty, respectability, and veracity and is generally considered as such by his neighbors;
  2. granting the petition will assist the ex-convict in obtaining employment or occupational licensing;
  3. the ex-convict has a substantial need for the certificate of employability in order to live a law-abiding life; and
  4. granting a certificate of employability would not pose an unreasonable risk to the public’s safety.[5]

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.[6] 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.[7]

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.[8]

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.[9]

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.”[10]

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.