On January 1, 2015, a new Michigan law took effect that helps protect Michigan employers from claims concerning the negligent hiring or retention of ex-convicts. In defending certain actions based on the employer having hired and retained a former criminal offender who caused personal injury, property damage or wrongful death during the course of employment, the employer may introduce the employee's “certificate of employability.” A certificate of employability is a document issued to a criminal convict who meets certain criteria when released from prison (M.C.L.A. 791.234d(2)). Under the new statute, the certificate of employability, “conclusively establishes that the employer did not act negligently in hiring the individual, if the employer knew of the certificate at the time of hire” (M.C.L.A. 600.2956a(2)).

In addition, the new Michigan statute provides for a stricter evidentiary standard in certain negligent retention actions. When an employee who has previously been issued a certificate of employability is hired and then is convicted of or pleads guilty to a felony (or demonstrates that he or she is dangerous to people or property), an employer is not liable for negligent retention unless a preponderance of the evidence establishes that the employer:

The ordinary standard for a negligent hiring and retention claim in Michigan requires a plaintiff to produce:

(Verran v. United States, 305 F. Supp. 2d 765, 771 (E.D. Mich. 2004).)

The statute does not relieve an employer's duties to comply with background check laws or laws providing for specific hiring qualifications. Michigan is the fifth state to enact this type of legislation, joining Texas, Louisiana, Tennessee and Georgia.