Tennessee Enacts Negligent Hiring and Retention Law
Portions of Tennessee’s new Negligent Hiring and Retention law take effect on Tuesday, July 1, 2014. This law encourages employers to hire ex-convicts by protecting employers from negligence claims for hiring or retaining an ex-offender who received a “certificate of employability” as long as the employer knew about the certification when the alleged negligence occurred. The ex-convict must file a petition with the court in order to receive a certificate.
There are limits to this new law. For example, an employer who hires a person who had been issued a certificate of employability under this section may be held liable in a civil action if:
(1) The employee, after being hired, subsequently demonstrates a danger or is convicted of a felony;
(2) The employee is retained after the demonstration of danger or the conviction;
(3) The plaintiff proves by a preponderance of the evidence (e.g., more likely than not) that the person having hiring or firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of the felony; and
(4) The employer, after having actual knowledge of the employee’s demonstration of danger or conviction of a felony, was willful in retaining the person as an employee.
Finally, for purposes of any person who possesses a certificate of employability applying for employment in an occupation or field that does require a license or certificate issued by the state, this act takes effect January 1, 2015.
In sum, this law protects employers from liability to a certain extent and encourages employers to hire people with a criminal history. It also encourages people with a criminal history to apply for jobs after having a court determine that they are employable. It remains to be seen whether this new law will actually decrease negligent hiring lawsuits since plaintiffs can establish liability by proving the four elements listed above.