June 17, 2019

June 17, 2019

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New Georgia Law Helps Protect Employers from Negligent Hiring and Retention Claims

On April 13, 2014, Georgia's governor signed SB 365 to, in part, protect employers that hire and retain employees with criminal convictions. Under the new law, if the Department of Corrections issues a "Program and Treatment Completion Certificate" (the "Certificate")[1]or the State Board of Pardons and Paroles grants a pardon (as defined by applicable law) to an ex-offender, an employer will be presumed to have exercised due care in hiring, retaining, or otherwise engaging in activity with, the ex-offender who received the Certificate or pardon. This presumption may be rebutted by relevant evidence that extends beyond the scope of the Certificate or pardon and that was known or should have been known by the employer.

Takeaway

Georgia joins other states that have tried to protect employers from negligent hiring and retention claims. Last year, Texas passed a law that insulated employers from negligent hiring and supervision claims unless the employer knew or should have known that an employee had been convicted of a crime while performing duties substantially similar to those required in his or her current position, or had been convicted of one of several crimes enumerated in the statute. And, much like the new Georgia law, under Florida law, an employer is presumed not to have been negligent in hiring if it conducted a "background investigation"[2] that did not reasonably demonstrate the candidate's unsuitability for the position.

However, with more states and localities limiting employers from performing criminal background checks on applicants or employees, or from considering criminal records in personnel decisions, there is concern that a growing number of jurisdictions have failed to provide sufficient protection from negligent hiring and supervision claims arising from criminal conduct committed by employees. Employers therefore should continue to vet applicants carefully, consistent with the law in their jurisdictions.


[1]  The new Georgia law tasks the Georgia Board of Corrections with promulgating rules and regulations to govern issuance of the Certificate. Those rules and regulations must specify eligibility considerations and requirements, and must take into account an offender's disciplinary record and any other factor the Board deems relevant to an individual's qualification for the Certificate. The law excludes any offender who was convicted of murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and/or aggravated sexual battery from eligibility for the Certificate.

[2] Under the Florida law, a background investigation may be satisfied with no more than a reference check or interview of the prospective employee (to offer a few examples).

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About this Author

Katharine H Parker, Labor Employment Attorney, Proskauer Rose Law Firm
Partner

Katharine Parker is a Partner in the Labor & Employment Law Department and co-head of the Employment Law Counseling & Training and Government Regulatory Compliance and Relations Groups.

212-969-3009
Daniel J Davis, Proskauer Law Firm, Labor Employment Attorney
Special Counsel

Daniel J. Davis is Special Labor & Employment Law Counsel in the Labor & Employment Law Department, resident in the Washington, DC office. He represents employers in a range of employment and labor issues, including equal employment, whistleblower and wage payment laws administered by the Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board. He litigates class and collective claims, including claims under Title VII, the ADEA, ERISA, NLRA and the FLSA. He represented The Boeing Company in a high-profile case by the National Labor Relations Board regarding Boeing’s decision to open a plant in South Carolina. 

202-416-6815
Kelly Anne Targett, Proskauer Rose Law Firm, Labor Employment Attorney
Associate

Kelly Targett is an Associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Whistleblower & Retaliation, and Appellate Practice Groups.

973-274-6074