On June 26, 2012, Governor Kasich signed Senate Bill 337, which, among other things, reduced collateral sanctions for convicted felons. What has not been well publicized is that it also contains a provision – to be codified at O.R.C. § 2953.25(G) -- granting employers immunity from civil claims for negligent hiring and retention in certain circumstances. One of the primary features of the legislation is that it permits eligible offenders (who have successfully completed incarceration and parole) to obtain a Certificate of Qualification for Employment. An employer which relies on this Certificate in hiring and retaining an eligible offender is immune from civil liability for negligent hiring claims involving that offender and may use it as evidence of its due care in hiring, retaining, licensing, leasing, or admitting that individual in any other negligence claims or administrative proceedings. Of course, the employer loses that immunity if it continues to employ the individual after gaining actual knowledge that the employee subsequently demonstrates “dangerousness” or is convicted or pleads guilty to a felony. The Department of Corrections has until the end of September to create a process for issuing Certificates (including creating the form of the Certificate) and must report back to the Governor and the General Assembly about what industries are hiring eligible offenders and their recidivism rates. The statute is scheduled to take effect in late September 2012, after the Department creates the necessary process and form of certificate and issues governing rules under R.C. 119 to implement and operate the legislation.
The legislation provides in relevant part as follows:
Sec. 2953.25.
. . .
(G)(1) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued to an individual under this section may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate of qualification for employment was issued if the person knew of the certificate at the time of the alleged negligence or other fault.
(2) In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued to an individual under this section shall provide immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence.
(3) If an employer hires an individual who has been issued a certificate of qualification for employment under this section, if the individual, after being hired, subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony, and if the employer retains the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea, the employer may be held liable in a civil action that is based on or relates to the retention of the individual as an employee only if it is proved by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of or pleaded guilty to the felony and was willful in retaining the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea of which the person has actual knowledge.
(H) A certificate of qualification for employment issued under this section shall be presumptively revoked if the individual to whom the certificate of qualification for employment was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of qualification for employment.
(J) Not later than ninety days after the effective date of this section, the division of parole and community services shall adopt rules in accordance with Chapter 119 of the Revised Code for the implementation and administration of this section and shall prescribe the form for the petition to be used under division (B)(1) or (2) of this section. The form for the petition shall include places for all of the information specified in division (F) of this section. Upon the adoption of the rules, the provisions of divisions (A) to (I) of this section become operative.
(K) The department of rehabilitation and correction shall conduct a study to determine the manner for transferring the mechanism for the issuance of a certificate of qualification for employment created by this section to an electronic database established and maintained by the department. The database to which the mechanism is to be transferred shall include granted certificates and revoked certificates and shall be designed to track the number of certificates granted and revoked, the industries, occupations, and professions with respect to which the certificates have been most applicable, the types of employers that have accepted the certificates, and the recidivism rates of individuals who have been issued the certificates.
Not later than the date that is one year after the effective date of this section, the department of rehabilitation and correction shall submit to the general assembly and the governor a report that contains the results of the study and recommendations for transferring the mechanism for the issuance of certificate of qualification for employment created by this section to an electronic database established and maintained by the department.
(L) The department of rehabilitation and correction, in conjunction with the Ohio judicial conference, shall conduct a study to determine whether the application process for certificates of qualification for employment created by this section is feasible based upon the caseload capacity of the department and the courts of common pleas. Not later than the date that is one year after the effective date of this section, the department shall submit to the general assembly a report that contains the results of the study and any recommendations for improvement of the application process.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
