In the last few weeks I have discussed recent developments in Tennessee and federal employment laws which will either take effect on January 1, 2015, or which may soon change some employment practices in Tennessee.

One very positive recent development was the Tennessee legislature’s passage of legislation which provides a mechanism for employers to give “second chance” opportunities for meaningful employment to individuals who have criminal convictions in their past. I have often observed that a number of employers and hiring managers believe in providing these second chance opportunities when possible. Unfortunately, until now, hiring managers must weigh the desire to extend a helping hand with the risk that hiring someone with a known criminal history, no matter how distant, could provide fodder for a claim of negligent hiring in the event the employee is later alleged to have engaged in some criminal, intentional, or other inappropriate conduct. For that reason, many employers simply determine the safest course of action is to avoid hiring individuals with any criminal history.

There can be no doubt that it is often advisable to understand the background of job applicants. There also are many positions for which any criminal record on the part of an applicant should cause an employer some pause and serious reflection. Obviously, a careful hiring manager needs to consider the nature of the applicant’s past criminal acts in conjunction with the duties and responsibilities of the job to be filled. For many positions, however, hiring managers would be much more inclined to seriously consider such applicants, but for the threat of tort liability in the negligent hiring context.

In 2014 the Tennessee legislature provided some assistance to employers and job applicants by creating a procedure by which qualified individuals with a criminal history can apply for and obtain a “certificate of employability.” The significance of this certificate is substantial. Tennessee Code Annotated § 40-29-107 provides:

In any proceeding on a claim against an employer for negligent hiring, a certificate of employability issued to a person pursuant to this section shall provide immunity for the employer with respect to the claim if the employer knew of the certificate at the time of the alleged negligence.

In addition, the statue provides that in the event of a claim against the employer for negligence or other basis of fault on account of hiring the certificate holder, the certificate of employability

may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the person to whom the certificate was issued if the person knew of the certificate at the time of the alleged negligence or other fault.

It is important to note that while this immunity applies to claims for negligent hiring, the statute does not extend that immunity to claims for negligent retention of an employee possessing a certificate of employability under certain circumstances. Specifically, the statute provides that an employer may be held liable for a claim based on negligent retention of the certificate holder as an employee, but only if 1) after being hired, the employee “subsequently demonstrates danger or is convicted of a felony;” 2) the employer retains the employee “after the demonstration of danger or the conviction;” 3) the person suing the employer is able to prove that the employer “had actual knowledge that the employee was dangerous or had been convicted of the felony;” and 4) the employer retained the person as an employee “after having actual knowledge of the employee’s demonstration of danger or conviction of a felony. …”

In short, the statute grants an employer immunity from claims relating to the employee’s criminal history if the employer was aware the employee possessed a certificate of employability at the time of hire. The statute does not protect employers from tort claims based upon the employee’s subsequent criminal actions if the employer became aware or should have been aware that the employee presented a danger, or was convicted of a felony after commencing employment.

If you are a person who may be a candidate for a certificate of employability, this new law creates a procedure by which you may file a judicial petition for the certificate. This is a court proceeding that requires presentation of very specific evidence. Knowledgeable and effective legal counsel can assist you in and presenting the required evidence necessary to obtain your certificate.