Employment makes the difference.
A number of states have legislation in place to protect employers who participate in second chance hiring. See some of the key elements of that legislation in each of those states below.
Employment supports Maryland’s ex-offender population and helps ensure new opportunity for these individuals. 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 is liable for that ex-offender if they commit a crime while on the job.
While the employers’ decision to hire an ex-offender is laudable, they subject themselves and their business to potential legal liability risks. For those who say that negligent hiring or inadequate supervision lawsuits are sparse, they still occur and have crippling effects, especially on small businesses. It is for these reasons why 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 recidivism and liability, legal safeguards for the employer must be enacted. The Maryland Chamber of Commerce weighed in on this issue in the 2017 legislative session and 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.
2017 Legislative Session
In 2017, two bills (cross-filed) were introduced by Senator Cassilly and Delegate Cassilly (SB 55/HB 440) which would have offered employers of ex-offenders immunity for liability from negligent hiring or inadequate supervision.
The specific bill sought to exempt employers in five sectors of negligent hiring or inadequate supervision based on former conviction or probation. The sectors are:
“Employer” refers solely to those engaged in the traditional employer-employee role, therefore one-time contractor or those paid per job are not included.
Both the Senate and House bills were voted unfavorably in their respective original committees.
The Maryland Chamber of Commerce lobbied in support of these bills.
The Need for Legislation
Maryland Case Law:
Questions have been raised concerning the necessity of employer immunity and negligent hiring laws as they relate to second chance programs. Some say the case history is not extensive for legislation to be necessary, however we have found cases where decisions could have been ruled differently given employer immunity and negligent hiring laws.
Mark W. Grimes v. Patrick Dunnigan, et al. (case number: 1:2013cv00935) – suit filed Sept. 2012 – U.S. District Court of Maryland.
In this case, an employee (plaintiff) filed suit against his employer (defendant) and another employee (defendant) alleging assault and battery against the employee and respondent superior and negligence against the employer. The plaintiff argued that the employer knew about an alleged past incident involving the defendant and that he was an ex-convict on parole as two reasons to why the employer should be held liable for negligent hiring. Ultimately the Court ruled against the employer’s motion to dismiss because she “knew or should have known about [the defendant’s] propensity for violent conduct.”
Concerning negligent hiring, supervision or retention, the precedent of the Court is as follows. As of now, the existence of a criminal background can be used against employers for the purpose of negligent hiring, supervision and retention.
In order to prove a cause of action for either negligent hiring, supervision or retention, the plaintiff must establish that her injury was caused by the tortious conduct of a coworker, that the employer knew or should have known by the exercise of diligence and reasonable care that the coworker was capable of inflicting harm of some type, that the employer failed to use proper care in selecting, supervising or retaining that employee, and that the employer’s breach of its duty was the proximate cause of the Plaintiff’s injuries. See Evans, 284 Md. at 165, 395 A.2d at 483 (quoting Hoover, 79 Md. at 262, 29 A. at 995); see also McCall’s Ferry Power Co. v. Price, 108 Md. 96, 103, 69 A. 832, 834 (1908).
Bryant v. Better Bus. Bureau of Greater Maryland (923 F. Supp. 720 (1996))
Positives and negatives of legislation
The Maryland Department of Labor, Licensing & Regulation (DLLR) has a Correctional Education (CE) division within the Division of Workforce Development and Adult Learning. 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.
Correctional Education Council Activity Report 2017
Changes in Review:
In 2016, the council reviewed the program outcomes for all sectors of Correctional Education. As a result of these evaluations and the ongoing work of the council, the following goals were accomplished for FY2017:
Workforce Development Initiatives:
 SB 55/HB 440 – Employers of Ex-Offenders – Liability for Negligent Hiring or Inadequate Supervision – Immunity