Ohio Background Screening Law Not Perfect, But Deserves Applause

Nick Fishman

I’m giving Ohio State Senator Shirley Smith (D- 21st District)  an A- on her effort to get those with criminal records back to work.

When she first floated the idea of making certain felony convictions eligible for expungement, I bristled and told myself that it didn’t stand a chance of passing.  We wrote a letter to the editor of the Cleveland Plain Dealer opposing her legislation to do so.  We also sent a letter directly to Senator Smith.  That was in 2007 and for a while, I was right; Ohio Senate Bill 197 didn’t see the light of day.

Fast forward to 2012 and Smith’s vision has become a reality in the form of Ohio Sentate Bill 337.  And while we were disappointed that her corrections bill contains a provision that that allows for the sealing of one qualifying felony or two misdemeanors, the good news is that expungement isn’t automatic and judges still have discretion over whether they allow a record to be expunged.

But here’s the really bright side and where I think Senator Smith deserves a ton of credit.  Her concern was removing barriers to employment and the difference between her proposed legislation in 2007 and the version that was recently passed is the establishment of a program that allows those with criminal records to petition for a certificate of employability.  And what’s more, if an company hires someone with one of these certificates, it offers that company immunity in the event that the person engages in criminal activity in the workplace.

This is the kind of program that truly addresses the issue.  Employers are still able to conduct an employment background check and those with criminal records can earn a certificate of good standing if they truly rehabilitate themselves.  If an employer takes a chance on someone with a certificate, they can be insulated from lawsuits arising from that person slipping up.  This is the kind of action other regulators should look to take instead of inhibiting an employer’s ability to conduct proper employee background checks.

Here is the relevant portion of of the bill:

(G)(1) In a judicial or administrative proceeding alleging negligence or other fault, a certificate of qualification for employment issued to an individual under this section may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate of qualification for employment was issued if the person knew of the certificate at the time of the alleged negligence or other fault.

(2) In any proceeding on a claim against an employer for negligent hiring, a certificate of qualification for employment issued to an individual under this section shall provide immunity for the employer as to the claim if the employer knew of the certificate at the time of the alleged negligence.

(3) If an employer hires an individual who has been issued a certificate of qualification for employment under this section, if the individual, after being hired, subsequently demonstrates dangerousness or is convicted of or pleads guilty to a felony, and if the employer retains the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea, the employer may be held liable in a civil action that is based on or relates to the retention of the individual as an employee only if it is proved by a preponderance of the evidence that the person having hiring and firing responsibility for the employer had actual knowledge that the employee was dangerous or had been convicted of or pleaded guilty to the felony and was willful in retaining the individual as an employee after the demonstration of dangerousness or the conviction or guilty plea of which the person has actual knowledge.

(H) A certificate of qualification for employment issued under this section shall be presumptively revoked if the individual to whom the certificate of qualification for employment was issued is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate of qualification for employment.

(I) A designee’s forwarding, or failure to forward, a petition for a certificate of qualification for employment to a court or a court’s issuance, or failure to issue, a petition for a certificate of qualification for employment to an individual under division (B) of this section does not give rise to a claim for damages against the department of rehabilitation and correction or court.

(J) Not later than ninety days after the effective date of this section, the division of parole and community services shall adopt rules in accordance with Chapter 119. of the Revised Code for the implementation and administration of this section and shall prescribe the form for the petition to be used under division (B)(1) or (2) of this section. The form for the petition shall include places for all of the information specified in division (F) of this section. Upon the adoption of the rules, the provisions of divisions (A) to (I) of this section become operative.

Nice work Senator Smith.  We’ll be following this law closely to see how it works.

 

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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  • Name Harold Schlaifer

    The Ohio approach makes sense from a liability point of view. Without such laws at the state level, employers are in an extremely difficult position. The EEOC Guidance declares that a blanket rejection of applicants based on a criminal record is most likely be a violation of the Title VII law because of the disproportionate impact on some individuals. So employers must now risk potential liabilities in the future. Clearly, this law mitigates most liabilities. Other states need to follow the Ohio example.