The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance released in April 2012. And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes. On the reverse side of this issue, recognizing that employers have potential tort exposure for hiring ex-offenders, some state legislatures have taken steps to protect employers from tort claims like negligent hiring and/or retention. One example is a new law in Texas. This legislation is intended to further the same public policy interests, but takes a different and more sensible approach: curbing lawsuits against employers rather than denying employers access to potentially salient information about a candidate’s criminal past.
