HB 2154 provides employers with additional guidance and updated notice procedures in the event of a data security system breach, and HB 2311 bolsters limited liability protections for employers when hiring employees or contracting with independent contractors previously convicted of criminal offenses.
Limited Liability for Hiring Ex-Criminal Offenders
Employers are often hesitant to contract, interview, or hire workers with criminal records. This hesitation stems at least in part from the increased risks and liability associated with possible negligent hiring claims. New Arizona legislation, HB 2311,2 has the social goal of expanding job opportunities for non-violent offenders, while shielding employers from certain lawsuits.
The law prohibits introducing evidence of an employee's or independent contractor's criminal offenses and/or convictions prior to the date of hire or engagement in negligent hiring cases. The legislation's definition of "criminal offense" does not cover all past crimes. "Criminal offense" is defined as "any criminal offense except violent offenses and sexual offenses." The broadest categories of coverage will be for non-violent or aggravated theft or the possession and sale of illegal drugs.
Notably, the liability limitations do not preclude potential lawsuits alleging negligent supervision. Furthermore, liability will not be precluded in situations where the employee/independent contractor was convicted of a criminal offense when the conviction is directly related to the nature of the work and the conduct giving rise to the action if the employer knows of the conviction or acted in a grossly negligent manner in not knowing of the conviction.
Likewise, the following examples are specifically precluded from the employer's limitations on liability:
- Misuse of monies or property by the employee/contractor if the employee/contractor has previously been convicted for an offense encompassing fraud or the misuse of monies prior to being hired or contracted, and it was foreseeable that the position would involve fiduciary responsibilities.
- Misappropriation of monies by an employee/contractor who was hired or contracted as an attorney, if the employee/contractor had prior convictions associated with fraud, the misuse of monies, or properties prior to being hired or contracted.
- Violent offenses or improper use of excessive force by an employee/contractor hired as a law enforcement officer or security guard.
Because both new laws take effect in a little over a month, employers should consider reviewing and revising their data security breach and hiring policies now.
Source: Littler Mendelson
Posted: June 19, 2018