On March 23, 2016, the “ban-the-box” legislation, signed into law in December 2015, by Governor John Kasich (House Bill 56), went into effect for all Ohio public employers. This law, also known as the “Ohio Fair Hiring Act” prohibits public employers from inquiring about an applicant’s criminal background on an employment application or related form.
Newly enacted Section 9.73 of the Ohio Revised Code reads, in pertinent part, that:
(B) No public employer shall include on any form for application for employment with the public employer any question concerning the criminal background of the applicant.
The Act does not, however, prohibit a public employer from including on its application a statement notifying applicants of any provision of Ohio or federal law that would disqualify an individual with a particular criminal history from employment in any particular position. There is also nothing in the Act that prevents a public employer from conducting criminal background checks or inquiring as to an applicant’s criminal background later in the interview process. Those inquiries will be governed by guidance from the Equal Employment Opportunity Commission (“EEOC”) on the use of arrest and conviction records in the hiring process. The law also makes some minor changes to Ohio Revised Code Chapter 124 with respect to the effect of a felony conviction on an applicant’s classified or unclassified civil service rights.
By March 23, 2016, public employers must change all employment applications, whether paper or electronic, as well as any other forms that accompany the employment application to remove any inquiry or reference to criminal convictions or background. Those public employers, such as public boards of education, that have positions requiring the absence of certain criminal convictions, should consider placing a statement regarding those requirements on the application, or as a supplementary form, to avoid the futility of applications from individuals with such convictions. This statement may only reference convictions deemed disqualifying for a particular position by Ohio and/or federal law. Public employers should implement internal procedures related to conducting and considering background checks and train the appropriate personnel on those procedures. However, to the extent a public employer conducts background checks and inquiries into criminal background later in the application process, those activities should continue, in accordance with guidance from the EEOC as to how criminal convictions may be considered in the decision-making process.