Certificate of Employability

1/26/2015

Public Chapter 815, codified at Tenn. Code Ann. § 40-29-107, effective July 1, 2014, provides a method for convicted criminals to apply for a “certificate of employability.” This has been an area of interest lately on a national level as the U.S. Equal Employment Opportunity Commission (“EEOC”) has publicly stated that they will look critically at employers who have blanket bans on hiring convicted criminals. The EEOC has even gone so far as to publish their “Enforcement Guidance on Consideration of Arrest or Conviction Records in Employment Decisions.” Additionally, this new provision is similar to many states’ recent “ban the box” statutes, which prohibit employers from asking about criminal convictions on applications. While many employers may have reservations about completely banning the ability to ask about criminal history, Tennessee’s new statute may present a workable compromise.

Under the new law, any person who has had or is seeking to have their rights of citizenship restored may also petition the court for a certificate of employability. The individual’s petition includes identification information such as name, alias, address, date of birth and social security number, as well as information relating to past criminal conduct. Also required for the certificate is that the individual have verifiable references and endorsements, the name of an immediate family member or other close relationship who supports the person’s reentry plan and a summary of why the individual believes the certification of employability should be granted. Once submitted, the certificate will undergo a review process by the court and, at the court’s discretion, the certificate may be issued if the court finds:

1) the individual has the character of honesty, respectability and veracity;
2) granting the petition will materially assist the individual in obtaining employment;
3) the person needs the relief in order to live a lawabiding life; 
4) granting the petition would not pose an unreasonable risk to the safety of the public or any individual.

Clearly, this new law will benefit those individuals who have been convicted of a crime and have reformed their behavior but are being limited by their criminal history in their ability to pursue a career or job of their choice. However, the new law also benefits employers in a substantial way by granting immunity for an employer who is sued for “negligent hiring” when the employee has a certificate of employability which the employer knows about. This protection is not unlimited, however, and an employer may be held liable in a civil action based on the retention of an employee if: 1) the employee subsequently demonstrates danger or is convicted of a felony; 2) the plaintiff proves that the person who has hiring and firing responsibility over the employee had actual knowledge that the employee was dangerous or had been convicted of the subsequent felony; and 3) that the employer, in spite of his knowledge, willfully retained the person as an employee.

Based on the immunity and heightened burden of proof provided for in the statute, employers should not need blanket bans on hiring individuals with criminal histories who have received certificates of employability. Rather, employers should evaluate these applicants on a case-by-case basis. Additionally, this statute should help to alleviate some of the burden on convicted criminals who are trying to turn their lives around by allowing them to be eligible for other jobs and opportunities.

If you have questions or for more information on Employment Law, please don’t hesitate to call Ben Cunningham at (865) 546-7311 or email at bcunningham@kmfpc.com.

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