Three new Michigan Laws (Public Acts 359, 360 and 361) designed to lower the unemployment rate among convicted felons and ex-offenders became effective January 1, 2015. They will work by protecting employers who hire ex-offenders from liability if those ex-offenders cause damage or injury during their employment.
Michigan became the fifth state, following Louisiana, Georgia, Tennessee and Texas, to introduce a “Certificate of Employability” that an employer can present as evidence in an action taken against it as proof that it did indeed conduct its due diligence in making its hiring decision.
Summarized in Michigan House Bill 5216, the new laws require the state Department of Corrections to supply multiple documents to certain prisoners upon their release that summarize their record and behavior while incarcerated, followed within 30 days by a Certificate of Employability.
The path to obtain this Certificate of Employability is not an easy one for the prisoner to navigate successfully. In order to receive it, the prisoner must have successfully completed a career and technical education course while serving time, have had no major misconducts during the two-year period leading up to release, had no more than three minor misconducts during that same two-year period, and must have received at least a silver level on the National Work Readiness Certificate (or similar assessment).
Once supplied to the ex-offender, the Certificate of Employability would be valid for four years barring any revocation. A revocation will occur if it is determined the ex-offender committed a criminal offense less than 30 days after parole, had any institutional misconduct during the two-year period leading up to release that came up after the fact, or were convicted of a felony crime after the Certificate was issued—provided that the felony falls under that particular Department of Correction’s jurisdiction.
With all that being said, producing a Certificate of Employability during a trial will not protect an employer that did not conduct a background check or verify that the ex-offender was qualified for the position. It is still the responsibility of the employer to ensure that it did not hire an ex-offender who was unsuitable for a particular position because he or she committed a specific crime. For example, a financial advising company must ensure it did not hire an individual convicted of felony embezzlement; a home health company must ensure it did not hire an individual convicted of felony sexual assault; and so on.
The law further requires the employer to know about the Certificate of Employability before making its hiring decision, because this would mean the employer knew of the conviction(s) that led to the offender status. Neither will it protect the employer should it hire an ex-offender with a Certificate of Employability, and then willfully retain that ex-offender after becoming aware after hiring the individual, by a preponderance of evidence, that the ex-offender is a danger to individuals or property; or is convicted of or pleads guilty to a felony.
Conversely, that employer will not be found negligible if it can show that it did not know, or had no evidence, that the ex-offender had subsequently demonstrated that or she was a danger to individuals or property, or had been convicted of or pled guilty to a felony charge.
These new laws make it clear that Michigan Employers should begin to do the following:
- Training: All HR personnel should be aware that they may begin to receive Certificates of Employability attached to job applications. If your company does not routinely conduct criminal background checks and you receive these certificates, it is imperative that you obtain any and all details regarding that individual’s conviction(s) through a reputable Consumer Reporting Agency (like ASE).
- Record Keeping: Certificates of Employability need to be kept on file for all certificate holders that are hired so that they can be easily accessed should they be needed in a lawsuit. In addition, certificates should be validated at least once each year; a simple State Criminal Check should be run to determine that the employee has not been convicted of a felony during that time, which would have revoked their Certificate of Employability.
- Be aware: You should update your company policies to include verbiage about how to report dangerous behavior, or knowledge of such information, to the HR department. First-line supervisors in particular, but others as needed, should be trained to recognize those behaviors and report them immediately to the proper party(ies).
These certificates will hopefully make it possible for employers to hire more ex-offenders and for those ex-offenders to succeed and work and in life. But the certificates are not “free passes” for employers to hire anyone that applies for any position. They do not provide full immunity from liability to the employer; nor do they protect the employer who retains an ex-offender with a Certificate if the employer becomes aware of information that would0 nullify the certificate.
Sources: Proskauer Rose LLP; HR Professionals Magazine