What is a Tennessee "Certificate of Employability"?

Miller & Martin PLLC Alerts | June 18, 2015

by dstjohn

by Stacie Caraway

A recent front-page article in the Chattanooga Times Free Press has elicited several questions from employers relating to a relatively new Tennessee law which allows those with prior felony convictions to receive a "certificate of employability" from a state circuit court judge.

What is a "certificate of employability"?

According to T.C.A. § 40-29-107, which became law in July 2014, a "certificate of employability" is an order issued by a circuit court judge which states that a person has sustained the character of a person of honesty, respectability and veracity and is generally regarded as such by his/her neighbors.

How does a person obtain one?

A certificate of employability must be requested through a written petition to the court as part of a convicted felon's efforts to have his/her voting and other citizenship rights restored. The petition is a form which requires the person filing it to provide the following information:

(1)  Their name, date of birth, and social security number;
(2)  All aliases and all social security numbers associated with those aliases;
(3)  Their home address, including the city, county, state, and zip code;
(4)  The length of time they have been a resident of Tennessee, expressed in years and months of residence;
(5)  A summary of their criminal history with respect to each offense that is a disqualification from employment or licensing in an occupation or profession, including the years of each conviction or plea of guilty for each of these offenses;
(6)  A summary of their employment history, specifying the name of, and dates of employment with, each employer and the positions held;
(7)  Verifiable references and endorsements;
(8)  The name of one or more immediate family members or other persons with whom they have a close relationship, who support their reentry plan; and
(9)  A summary of the reason or reasons they believe the certificate of employability should be granted.

The individual must pay the costs of filing the petition.

Can anyone with a past criminal history apply for a certificate?

No. Only those who have been convicted or pled to nonviolent crimes and have been released or otherwise fulfilled the terms of their incarceration, parole, probation, pretrial or judicial diversion or community correction supervision. For purposes of this process, violent crimes which would be ineligible are as follows:

(1)   First degree murder, including any attempt, solicitation or facilitation to commit first degree murder;
(2)   Second degree murder and any attempt or facilitation to commit second degree murder;
(3)   Especially aggravated kidnapping and any attempt or facilitation to commit especially aggravated kidnapping;
(4)   Especially aggravated robbery and any attempt or facilitation to commit especially aggravated robbery;
(5)   Aggravated rape and any attempt or facilitation to commit aggravated rape;
(6)   Rape of a child and any attempt or facilitation to commit rape of a child;
(7)   Aggravated arson and any attempt or facilitation to commit aggravated arson;
(8)   Aggravated kidnapping;
(9)   Aggravated robbery;
(10) Rape;
(11) Aggravated sexual battery;
(12) Especially aggravated burglary;
(13) Aggravated child abuse;
(14) Aggravated sexual exploitation of minor; and
(15) Especially aggravated sexual exploitation of a minor.

Does anyone have a right to contest a petition for a certificate of employability?

Yes. Notice of the petition must be given to both the District Attorney and the United States Attorney of the county and district in which the person currently resides and the District Attorney (or the United States Attorney if the conviction was federal) of the county in which he/she was convicted. Each of these then have twenty (20) days to contest the petition. The District Attorney of the county in which the person was convicted also must send the notice to the last known address of the victims of the person's crimes so that they can contest the petition if they wish to as well.

The court considering the petition also may request further investigation, reports, etc. before issuing a certificate.

What are the grounds for a certificate of employability being issued by a court?

Along with (1) finding that the person has sustained the character of a person of honesty, respectability and veracity and is generally regarded as such by their neighbors, the court also must find that
(2)  Granting the petition will materially assist the person in obtaining employment or occupational licensing;
(3)  The person has a substantial need for the relief requested in order to live a law-abiding life; and
(4)  Granting the petition would not pose an unreasonable risk to the safety of the public or any individual.

If someone presents a certificate of employability, does that mean I have to hire them?

No.

What is the purpose of the certificates then?

To the extent the person cannot be hired by your company due to a state or federal agency regulation which prevents them from obtaining certain licenses, certificates, etc., these agencies are not permitted to withhold the license, etc. solely based on the past conviction if the person obtains a certificate of employability. (They are still free to consider the circumstances of the conviction and deny the license, etc. on that basis even if the person presents a certificate however.)

Does having a certificate of employability release my company from all liability for anything the former felon may do in the future?

No. It will provide a defense to a negligent hiring or supervision claim which is based on the past convictions which were addressed with the court when the certificate was issued, if your company knew of the certificate when making the hiring decision. (For this reason, it would be important to see the underlying petition filings as well unless the certificate itself states the person's past convictions of which the court was aware at the time of issuing the certificate.)

A certificate of employability also will not provide immunity to an employer regarding these or other claims, if the person after being hired demonstrates dangerous tendencies or is convicted of another felony, and if the employer knew of such tendencies or the later conviction and still retained the person.

Can a certificate of employability be revoked?

Yes. If the person to whom the certificate was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate.

As always, should you have any further questions regarding these certificates of employability in Tennessee, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.

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