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St. Thomas Law Review

First Page

183

Document Type

Article

Abstract

This article will argue that the proper way to balance the competing public policies of protecting victims from workplace harm and of reintegrating ex-convicts is for states to make it clear to employers when they will be liable for negligent hiring and when they can hire ex-convicts and avoid liability. States can accomplish this in at least two ways. First, states should adopt uniform and clear requirements for negligent hiring while retaining employers' discretion to refuse ex-convicts employment based solely on their status as ex-convicts. Second, all states should fashion legislation with similar requirements. For example, courts should hold employers liable for negligent hiring only when employers are on actual notice that they should have performed a background check and failed to do so, or when they perform a background check and the criminal record is one that directly relates to the specific duties of employment. This approach reflects some of the requirements in the New York Correction Law that prohibits discrimination against potential employees based solely on their status as ex-convicts. Unlike the New York law, however, this recommended approach allows employers to discriminate against potential employees based solely on their status as ex-convicts. Because ex-convicts are a distinct class from other protected classes under Title VII, employers should retain their discretion to discriminate against ex-convicts based on that status. But if states were to provide concrete requirements for employers to avoid negligent-hiring suits, it may result in their hiring more ex-convicts. Part II will flesh out the standards for negligent hiring and some of its thorny elements. Part III will then explain the competing public policies for protecting victims of employment-related crimes and for reintegrating ex-convicts. Part IV will address the federal and state approaches to balancing these competing public policies. Part V will draw distinctions between ex-convicts and the traditionally protected classes. Finally, Part VI will propose a state approach that will inform employers when they may hire ex-convicts and avoid liability and under which circumstances hiring ex-convicts will lead to liability.

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