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Tennessee Grants Negligent Hiring Immunity

By Michael Klazema on 7/11/2014

The Tennessee legislature recently enacted Senate Bill 276, which establishes section 107 of the Criminal Procedure Code Title 40, Chapter 29. Chapter 29 deals with the restoration of citizenship for persons convicted of infamous or felony crimes and were deprived of the rights of citizenship by judgment of a state or federal court. Section 107 was created so that individuals applying to have citizenship restored may also petition the court for a certificate of employability. Effective July 1, 2014, employers are granted immunity from liability for hiring individuals with a certificate of employability, in some circumstances.

When a court receives an individual’s petition for a certificate of employability, it must review the petition, the person’s criminal history, filings submitted by a district attorney, United States attorney, or victim of crimes perpetrated by the petitioner, and all other relevant evidence. The court may issue a certificate of employability, at its discretion, if it finds that the person has established all of the following:

  1. The petitioner has been a person of honesty, respectability, and veracity, and is generally esteemed as such by his or her neighbors;
  2. Granting the petition will materially assist the person in obtaining employment or occupational licensing;
  3. The person has a substantial need for the relief requested in order to live a law-abiding life; and
  4. Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.

If an individual presents a valid certificate of employability, then Tennessee occupational licenses and certificates will not automatically be denied issuance, restoration, or renewal based solely on a person’s past criminal history. Instead, consideration will be given on a case-by-case basis whether to grant or deny an occupational license when an individual presents a certificate of employability.

A certificate of employability may be used as evidence of an employer’s due care in hiring in defense of a legal or administrative proceeding if the employer knew of the certificate at the time of the alleged negligence or other fault. However, there is no immunity if all of the following apply:

  1. The employee demonstrates danger or is convicted of a felony after being hired;
  2. The employer retains the person as an employee after the demonstration of danger or the conviction;
  3. The plaintiff proves that the person with hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of a 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.

The provisions of the new law do not apply to individuals or entities subject to licensing, certification, or regulation by any board, commission, or agency for police officers, correctional institutions, and individuals in the mental health, education, insurance, healing arts, or welfare industries.

Tennessee’s Public Chapter No. 815 is available here: http://state.tn.us/sos/acts/108/pub/pc0815.pdf

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