Arizona Legislation Provides Limited Liability to Employers Hiring Ex-Offenders

Arizona recently joined the nationwide trend aimed at helping those with a prior criminal past obtain gainful employment. Effective August 3, 2018, House Bill 2311 offers protection to employers from negligent hiring lawsuits if they choose to hire an employee or independent contractor that was previously convicted of a criminal offense.

In particular, if an employer were to be targeted in a negligent hiring suit, the fact that the employee or independent contractor was previously convicted before they began working with the employer cannot be introduced into evidence.

Limitations to Protections Afforded by HB 2311

The law requires employers to provide adequate supervision (such as taking reasonable steps to control employee behavior to ensure a safe workplace). Further, the information may be introduced into evidence if the employer knew of the conviction (or should have known) and the conviction was “directly related to the nature” of the work performed and subsequently the conduct that gave rise to the alleged injury. For example, arguably the negligent hiring protections would not apply if a transportation company hired an individual with a previous criminal DUI conviction as a truck driver who then caused a fatal accident driving for the company while intoxicated.

Additionally, the law’s definition of “criminal offense” specifically excludes crimes involving violent offenses or sexual offenses; consequently, employers should proceed with caution when considering individuals with criminal convictions that fall under these two categories.

HB 2311 Exceptions

HB 2311 also outlines specific exceptions from the law’s protections including the misuse or misappropriation of monies or property, and violent offenses or improper use of excessive force when hiring a law enforcement officer or security guard.

This legislation provides employers protection against some lawsuits while still promoting the opportunity for those with a criminal past to gain employment. Employers should consult with qualified legal counsel to determine what offenses may be “directly related” to positions within their industry and whether an exception applies.