Individuals with criminal records may petition the court for a certificate of employability. The court must review the petition, the person’s criminal history and filings submitted by a district attorney, United States attorney, or victim of crimes perpetuated by the petitioner, and all other relevant evidence. At its discretion, the court may issue a certificate of employability. The new law fulfills a dual purpose of assisting individuals with a felony conviction to find employment and protecting employers from potential claims related to employing those individuals. As of July 1, 2014, the law created protection for employers who rely on the certificates from claims of negligent hiring or retention under certain circumstances.
The court may grant the petition for employability if the petitioner establishes that:
- The petitioner has sustained the character of a person of honesty, respectability, and veracity, which is generally confirmed by his or her neighbors;
- Granting the petition will materially assist the petitioner in finding employment or obtaining occupational licensing;
- The petitioner has a substantial need for the certificate to live a law-abiding life; and
- Granting the petition would not create an unreasonable risk to the safety of the public or any individual.
If the court grants the petition, the petitioner will receive a certificate of employability for use in obtaining employment. However, the certificate will be revoked if the certificate holder is convicted of, or pleads guilty to, a felony after obtaining the certificate.
It is important to note that the new law does not require employers to hire persons with a certificate of employability. Nor does the law provide unlimited protection. An employer that hires a certificate holder may be liable in a lawsuit based on, or relating to, its retaining the individual if:
- After hiring, the individual demonstrated danger or was convicted of a felony;
- The individual is retained as an employee after such a demonstration or conviction;
- The plaintiff proves by a preponderance of the evidence that someone employed by the employer with hiring and firing responsibility had actual knowledge that the employee was dangerous or was convicted; and
- The employer, after having actual knowledge of the danger or conviction, willfully retained the individual as an employee.
Other states, such as Ohio and, more recently, Connecticut, have enacted similar laws. Given the recent federal and state trends limiting the use of criminal background information in the hiring process, other states are expected to follow suit.
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