When a former offender leaves prison to rejoin the community, much of his success at staying away from crime depends on his ability to find a job. A study by the nonpartisan Urban Institute found that former offenders employed within two months of release were less likely to be incarcerated a year later.
Many employers are willing to hire qualified ex-offenders, but are concerned about the possibility of a civil lawsuit if an employee commits an offense while on the job. Given the serious investment in money, time and effort that business owners make, it’s hard to fault them for wanting to protect themselves.
To encourage ex-offender employment, Illinois needs to take the concerns of employers seriously. One way the state can do this is by limiting the risk employers face from civil negligent-hiring lawsuits – giving employers the confidence to take a chance on a former offender without fear of exposure to lawsuits as a result.
Some critics have argued that since the likelihood of a negligent-hiring lawsuit is very low, there’s little need to change the law in most states. But even if these lawsuits are rare, the threat is real enough that it has influenced hiring practices.
In fact, 52 percent of employers conduct background checks because they are concerned about the risk of negligent-hiring liability, according to survey data collected by the Society for Human Resource Management. Employers are clearly concerned about lawsuits, and unless those fears can be assuaged, there’s little reason to think they would expose themselves by hiring former offenders.
Several states have already taken a lead on providing hiring-liability protections to businesses. Since 2010, Colorado, Connecticut, Minnesota, New York and Texas have passed negligent-hiring liability laws. Colorado’s law, for example, limits the use of an employee’s criminal record in lawsuits if an arrest didn’t result in a conviction, if the record was sealed or the person received a pardon, and, most importantly, if the conviction was unrelated to the facts of the case. Kansas, Louisiana, Massachusetts, North Carolina and Ohio also provide qualified immunity from lawsuits when a criminal record is the only evidence of negligence.
Illinois does provide some negligent-hiring liability protection – but only for employers that hire former offenders who have been issued certificates of relief from disabilities. These certificates are issued by courts to former offenders as evidence of the offenders’ rehabilitation. It makes them eligible for certain business and professional licenses, and provides protection from lawsuits to employers that hire the ex-offenders.
But these certificates aren’t an ideal solution to the problem of hiring. Not all former offenders can afford the money for a lawyer to handle the application process for the certificate, or the time to wait to be issued the license before looking for work. An ex-offender’s job-search process should be as streamlined as possible. A complicated hiring process adds roadblocks to employment and discourages work, which should be actively encouraged.
A good reform law would limit an employer’s liability for hiring an offender with a record to cases in which:
The employer knew of the conviction or was grossly negligent in not knowing of the conviction
The conviction was directly related to the nature of the employee’s or independent contractor’s work and the conduct that gave rise to the alleged injury that is the basis for the suit
Updating Illinois’ negligent-hiring law would also be fairer. Responsibility for an offense should lie with the person who commits it – not with an employer, unless the employer directly caused the conduct in question. Employers that conduct due diligence in hiring shouldn’t have to worry about being made to pay for someone else’s conduct. And by limiting hiring liability, lawmakers ensure individuals remain responsible for their own behavior – a critical point to emphasize for former offenders.
If the business community is reluctant to hire ex-offenders, it will remain difficult for them to overcome the stigma that often keeps jobs beyond their reach. Illinois can ease the transition to legal employment by enacting negligent-hiring reforms.
Bryant Jackson-Green ([email protected]) is a criminal justice policy analyst with the Illinois Policy Institute. An earlier version of this article appeared at https://www.illinoispolicy.org/how-business-liability-reform-can-help-encourage-ex-offender-employment/. Used with permission