Does hiring someone who has been previously convicted of a felony expose an employer to greater liability?
Yes, but recent Georgia employment legislation offers employers greater protection when hiring certain ex-offenders.
In brief, Governor Deal recently signed legislation which makes it safer for employers to hire ex-offenders. There are three points of this bill which are most relevant to Georgia employers:
- Georgia now has a certification for inmates who have made significant achievements towards successful re-entry into society
- This certificate creates “a presumption of due care in hiring” and retaining this individual for purposes of protecting the employer from liability that may arise from the ex-offender.
- The presumption of “due care” may be rebutted if there is “relevant evidence” which was known or should have been known by the person against whom negligence is asserted.
On April 1, 2014, Governor Nathan Deal signed SB 365. This bill makes it easier for ex-offenders to re-enter society after their prison terms have ended or they have been pardoned for their crimes. The bill helps ex-offenders have an easier time procuring access to education, housing, jobs and other things that may help them remain out of jail. The bill specifically addresses concerns of employer liability by creating legally defined means for employers to show that they have exercised due care in hiring an employee despite the fact the employee has a criminal record.
A Georgia business can be held liable for negligence if it hires or retains an indidividual who had a background that indicated that he or she might damage or injure other employees or third parties. An employee's criminal background might be considered proof that he or she was a risk in the workplace, and the employer was thus negligent for such an employee's hire or retention. SB 365 creates a certification program which gives ex-offenders a way to prove that they are no longer a risk for the crimes for which they were convicted.
SB 365 provides for the creation of a "Program and Treatment Completion Certificate" (PTCC). The PTCC signifies that the ex-offender has made “significant achievements toward a successful reentry into society” (see O.C.G.A. § 42-2-5.2 ). The bill explains that issuance of the PTCC creates a "presumption of due care in hiring, retaining, licensing, ...or otherwise engaging in activity” the ex-offender who has earned it.
However, Georgia employers should still be mindful that the PTCC and SB 365 do not entirely erase the significant financial risk that may arise from hiring ex-offenders. Even frivolous claims of negligence in hiring or retaining can often involve issues that must be decided through costly litigation or by unjustifiably large settlements. This is because claims of negligence in hiring and retention often involve factual questions which can only be resolved through a jury trial. Thus, even though the new legislation may protect the employer from liability, it may not be sufficient to offer full protection from expensive litigation which was the result of hiiring the ex-offender.
Bottom Line / Quick Info You Can Use
SB 365 gives Georgia employers more protection when hiring ex-offenders. However, Georgia employers must still be mindful that the law does not necessarily protect them from ancillary expenses caused by claims of negligence arising from employing individuals with criminal backgrounds.
Links to Outside Information
SB 365 was sponsored by Senators Jesse Stone (23rd), Charlie Bethel (53rd), Bill Jackson (24th), Butch Miller (49th), John Crosby (13th), Bill Cowsert (46th) and by Representative Rich Golick (40th) in the House.
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