Criminal justice reform continues to be one of the hottest topics in 2021 in various states and the federal level. Jurisdictions across the country are tackling this important subject in a variety of ways including ban the box or fair chance laws and expungement efforts as a way to reduce barriers. Two states – Arizona and Kentucky – recently passed legislation aimed at providing individuals with a prior criminal history a certificate to present to employers.
Arizona’s Certificate of Second Chance
Signed by Arizona Governor Doug Ducey on April 1st, HB 2067 allows the court to issue an order including a “Certificate of Second Chance” to an individual whose judgment of guilt is set aside. Among other things related to housing and occupational licensing, this certificate provides employers with the protections under Section 12-558.03. Passed in 2018, these protections offer cover for employers from negligent hiring lawsuits if they choose to hire an employee or independent contractor who was previously convicted of a criminal offense.
Employers must take certain steps in order to receive the protections including providing adequate supervision, such as taking reasonable steps to control employee behavior to ensure a safe workplace. Additionally, information may still be introduced into evidence if the employer knew (or should have known) of the conviction and the conviction was “directly related to the nature” of the work performed and the conduct that gave rise to the alleged injury.
Kentucky’s Certificate of Employability
HB 497 in Kentucky also creates a certificate program. The law was signed by Kentucky Governor Andy Beshear on April 5th.
The law outlines specific documentation that the Department of Corrections will issue to prisoners upon their release and consent, including items related to educational and work experience gained while incarcerated. In addition to these documents, the Department of Corrections may also issue a “certificate of employability” if certain conditions related to vocational and/or educational requirements are met. To be eligible, the individual must have received no major disciplinary violations during the year preceding his or her release. If an individual re-offends and is convicted of a felony, the certificate will be revoked.
Employers may request that the Department of Corrections confirm if a certificate of employability has been issued and whether it is valid at the time of the inquiry. Various protections are afforded to employers including introduction of the certificate in any proceeding alleging negligence or other fault as evidence of the employer’s due care in hiring or retaining the individual. Further, employers may rely on the certificate as a defense in a negligent hiring claim – unless the employer knew or should have know then employee should not be hired for the position due to the nature of the criminal history.