Employment makes the difference
Employment supports Maryland’s ex-offender population and helps ensure new opportunity for these individuals. While there are several second chance programs in place within the state, for some employers, it is a challenging decision to hire an ex-offender. This choice is driven by the fact that, under current law, an employer could be held civilly liable for a negligent act committed by an employee solely because of that employee’s criminal past—irrespective of whether the prior criminal offense bears any relation to the current act.
The mere fact of a prior criminal history could be viewed as sufficient to establish that an employer “knew or should have known” that the employee was “potentially dangerous”. While an employer’s decision to hire an ex-offender is laudable, the employer, under current Maryland law, could also be subjecting themselves and their business to potential legal liability risks. The potential for litigation, and the concurrent cost, could be devastating for a business—especially a small business. It is for these reasons, employers are so diligent in their application and screening processes. Often, an applicant’s criminal record is enough for an employer to reject their application.
The business community is willing and able to provide an ex-offender a second chance, but in order to ease the concerns of unnecessary and costly liability exposure, legal safeguards for the employer must be enacted. The Maryland Chamber of Commerce weighed in on this issue in the 2017 legislative session regarding an employer’s exposure to negligent hiring and failure of adequate supervision claims.
The Maryland Department of Labor, Licensing & Regulation (DLLR) has a Correctional Education (CE) division to help support the re-integration of ex-offenders into the workforce. CE provides educational opportunities to over 9,000 inmates in Maryland to equip them with the skills they need to successfully transition to the workforce after release. Through a combination of academic and workforce development instruction, inmates are gaining the tools necessary to re-integrate into society upon their release.
A number of states have legislation in place to protect employers who participate in second chance hiring, regarding claims of negligent hiring and failure to adequately supervise. See some of the key elements of that legislation in each of those states below:
Note: Criminal history can be used if the action has a direct relationship to the past crime
Note: Employers are liable for willful or wanton acts by the employee in hiring these employees
Note: Employers are still liable if an employee demonstrates “dangerousness” and employer willfully retains the employee
Note: Does not protect an employer who knew or should have known of past convictions if employee was convicted of an offense committed while performing duties similar to the current employment or an employee who committed various violent offenses (rape, murder, kidnapping, etc.)
Does not protect employers if employee was involved with mishandling of money and the employee was previously convicted of fraud and it was foreseen the job would involve the employee dealing with money
Note: Law excludes those who were convicted of violent crimes
Note: Does not include protection if employee committed violent or sex related crimes
Note: Employers are still liable if employee demonstrates danger or is convicted of a felony and employer willfully retains the employee
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