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New Legislation Provides Employer Protections for Hiring Employees with Specific Criminal Convictions

8.28.2018

Unlike many other states, North Carolina law does not prohibit employers from asking applicants about their criminal history at any time during the application process, or considering it in making hiring decisions. However, the state recently enacted legislation to provide protection to employers seeking to employ individuals with certain criminal histories who obtain a Certificate of Relief. Effective December 1, 2018, Employers who rely on a Certificate of Relief issued to an individual who was convicted of certain crimes are not liable for any action alleging negligence based on the hiring or employment of that individual. N.C. Gen. Stat. § 15A-173.2.

The new law, “An Act to Amend the Law Regarding a Certificate of Relief For Criminal Convictions,” applies to Certificates of Relief obtained after the statute’s effective date. A Certificate of Relief is available to individuals convicted of no more than two Class G, H, or I felonies or misdemeanors in one session of court, and who have no other convictions of a felony or misdemeanor. An individual meeting the above criteria may petition the court in which he or she was convicted for a Certificate of Relief relieving collateral consequences.

A court may then issue a Certificate of Relief if it finds that (1) 12 months have passed since the completion of the individual’s sentence; (2) the individual is seeking employment, training, education, rehabilitative programs, or other lawful source of support; (3) the individual has complied with all requirements of his or her sentence; (4) the individual is not in violation of the terms of the criminal sentence; (5) a criminal charge is not pending against the individual; and (6) granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

A Certificate of Relief does not expunge an individual’s record, but instead relieves him or her from some “Collateral sanctions,” defined in the statute as a penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law. N.C. Gen. Stat. § 15A-173.1

The statute provides employers with insulation from liability in any judicial or administrative proceeding alleging negligence including lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business with the individual who has obtained the Certificate of Relief. N.C. Gen. Stat. § 15A-173.5. In order to be entitled to this protection, the employer must know of the Certificate of Relief at the time of the alleged negligence.

Employers seeking to expand their applicant pool or provide a second chance to individuals with criminal histories can consider developing programs where they identify or encourage eligible individuals to petition for Certificates of Relief.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601 | © Poyner Spruill LLP. All rights reserved.

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