E-Verify mandate — 35-employee threshold
Effective January 1, 2023, Tennessee requires private employers with 35 or more full-time equivalent (FTE) employees under the same FEIN to use the federal E-Verify program to verify work authorization for all newly hired employees. The employee count includes all employees under the FEIN, whether working inside or outside Tennessee. Employers with fewer than 35 FTE employees may choose to use E-Verify voluntarily or maintain specified identity and employment authorization documents instead.
Source: Tenn. Dept. of Labor & Workforce Dev., Employment Verification
Criminal history inquiry restrictions — state employers only
Tennessee's "ban the box" law, enacted in 2016 under Tenn. Code Ann. § 8-50-112, restricts when state government employers may inquire about an applicant's criminal history, but does not apply to private employers. The statute defines "employer" to mean "the state and any agency, authority, branch, bureau, commission, corporation, department, or instrumentality of the state," and explicitly excludes contractors, subcontractors, political subdivisions, the Department of Education, the State Board of Education, and the Tennessee Bureau of Investigation.
For non-covered positions (positions that do not require a criminal background check under federal law and for which commission of an offense is not a disqualifying event under federal or state law), state employers are prohibited from inquiring about an applicant's criminal history on the initial application form. The employer may, however, inquire about criminal history after the initial screening of applications. When the employer does inquire, it must provide the applicant with an opportunity to explain the criminal history.
For covered positions (those requiring a criminal background check under federal law or where an offense is disqualifying), the employment announcement must include a statement notifying applicants that a criminal background check is required and that they may be required to provide information about their criminal history to be considered for the position.
When considering an applicant with a criminal history for a non-covered position, the state employer must evaluate seven statutory factors under § 8-50-112(c):
- The specific duties and responsibilities of the position;
- The bearing, if any, that the applicant's criminal history may have on fitness or ability to perform those duties;
- The amount of time elapsed since the conviction or release;
- The age of the applicant at the time of each offense;
- The frequency and seriousness of each offense;
- Any information the applicant produces regarding rehabilitation and good conduct since the offense; and
- Any public policy considerations regarding the benefits of employment for applicants with criminal histories.
The statute provides that criminal history information obtained by a state employer must remain confidential except as otherwise required or expressly permitted by state or federal law. State employers are held harmless from damages arising from failure or refusal to hire an applicant for any covered or other position based on information obtained from a criminal history inquiry.
Private employers in Tennessee remain free to inquire about criminal history on initial applications; the statute imposes no restrictions on private-sector hiring practices. Several Tennessee municipalities—including Memphis, Nashville, Chattanooga, Hamilton County, and Shelby County—have adopted their own ban-the-box policies, but those local ordinances likewise apply only to public employers within those jurisdictions.