Catching the “ban the box” wave that has already swept legislation into 17 other states, Governor Kasich has signed into law the “Fair Hiring Act.” This is Ohio’s new “ban the box” law, and it becomes effective on March 23, 2016.  The law prohibits public employers from inquiring into and considering the criminal background of applicants during the general application portion of the hiring process (banning that check box).

Public employers in Ohio must now wait until the applicant has been selected, and the employer is ready to make an offer of employment, before running a background check. While public employers can still reject an applicant based on a criminal record, employers must now make an individualized determination that the criminal record is relevant to the job responsibilities before rejecting the applicant.  After making that determination, the employer must then state in writing that the applicant’s criminal history was the basis of denying employment.

It is important to note that the law does not prohibit public employers from notifying applicants of state or federal laws that automatically disqualify applicants with a particular criminal history from employment for specific positions.

Although the law provides that the requirements are applicable to public employers, including political subdivisions, it is unclear whether the law will apply to municipal corporations. Under the Home Rule Amendment to the Ohio Constitution, municipal employment matters are generally considered to be matters of local self-government. In the past, the Ohio Supreme Court has ruled that a chartered municipality’s self-government powers include the right to adopt local civil service ordinances, if the charter expressly states the intent to supersede general state statutes. Non-chartered municipalities may also enact civil service ordinances that supersede state statute, if the statutory requirements are substantive rather than procedural. These powers do not, however, exempt municipalities (other than villages) from complying with Article XV, Section 10 of the Ohio Constitution, and ensuring that civil service appointments and promotions are based upon merit and fitness.