Kentucky in the Lead to Protect Employers with New Reentry Law

You might have noticed a significant push across the country to remove a criminal record as a barrier to employment. Varying new laws have been introduced to  attempt to help the third of American adults that have a criminal record get work. These include ban the box, clean slate, and fair chance laws, to name a few. These laws generally aim to end the discrimination of anyone with a criminal record during the hiring process.

The state of Kentucky is off to the races with a new take. And this one also offers unique benefits to employers.

Kentucky on Track to Certify Employability

House Bill 497 was an immediate winner with the Kentucky Legislature. The bill passed unanimously in March 2021. Governor Andy Beshear later signed it on April 5, 2021. The bill introduces, among other things, a “Certificate of Employability” (COE) program for eligible individuals released from incarceration.

The new law will take effect on June 29, 2021. So how does it work for candidates and employers in the state?

Program Criteria for Participants

The new COE won’t be available for every person leaving incarceration. Those that are eligible will receive a COE from the Kentucky Department of Corrections (DOC). But to receive this certificate, participants must meet all of these requirements:

• They must achieve one or both of the following:
  • Earn an educational credit, a program completion credit, or a work-for-time credit while incarcerated; or
  • Prior to incarceration, have earned a high school diploma, high school equivalency diploma, a college degree, certification from a vocational or technical educational program that the program was completed, or a diploma or degree from a correspondence postsecondary education program approved by the DOC.
• They may not receive any major disciplinary violations in the year leading to their release.
• They must receive a score or level of competence as determined by the DOC on a job skills assessment test.

On top of the COE program, the DOC will help prepare job resumes for incarcerated persons as part of a life skills program. The DOC is required to help incarcerated persons obtain records or documents to assist in preparing resumes.

Impacts on Kentucky Employers

 If you employ people in Kentucky, you might be wondering how this could impact you. The law does not require employers in the state to hire candidates with a criminal history. But the law does potentially reduce the risk for employers that chose to hire a person with a COE.

Employers that hire a candidate with a COE will have certain legal protections:

• In a proceeding alleging negligence or other fault, a COE may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business with an individual with a COE if the person knew of the COE at the time of the alleged negligence.
• In a proceeding against an employer for negligent hiring, a COE may be a defense to the claim if the employer knew of the COE at the time of the alleged negligence.
  • However, employers cannot use a COE as a defense in a negligent hiring proceeding if the employer knew or should have known that the employee should not be hired for the position due to the nature of his or her history, including criminal history.

Employers may want to review the law with their legal team to understand how it may impact their hiring.