Limiting Employer Liability
Employers in Philadelphia require skilled and dedicated workers in order to be successful. Citizens who are returning to the workforce after being incarcerated represent an underutilized talent pool, many of whom possess the qualifications employers seek. Every year, around 35,000 individuals are released from local jails and state and federal prisons and return to Philadelphia, contributing to the population of nearly 50,000 parolees and probationers living within the city in any given year1.
Employers balance two challenges when considering hiring citizens who are returning to the workforce after an incarceration: the possibility of lawsuits for discriminatory hiring practices, and concerns over negligent hiring claims. In recognizing these concerns, some states have adopted negligent hiring protections that limit employer liability associated with hiring returning citizens. Pennsylvania has not yet adopted any legislation that addresses these concerns.
Philadelphia Works has identified 12 states that have passed the laws to limit employer liability when hiring formerly incarcerated individuals and has provided an analysis of these policy options in a recent brief. The three common approaches are:
- Limit the use of an employee’s criminal history as evidence during a trial unless the nature of the criminal history bears a direct relationship to the facts underlying the cause of action ( e.g. Colorado; Minnesota);
- Establish a state-issued certificate which functions as a bond to protect the employer by a presumption of due care as long as the employer knew a candidate had such a certification at the time of hiring (e.g. Georgia; Illinois; North Carolina; Ohio; Tennessee) ;
- If the employer has complied with the law to conduct a criminal background investigation, the employer is presumed not to be held liable for negligent hiring under certain circumstances (e.g. Florida; Massachusetts; New York).
1 The Philadelphia Reentry Coalition: Countywide Blueprint, October 2013