House Bill 56 was introduced on February 10, 2015. The bill seeks to amend several provisions of the Ohio Revised Code that deal with the use of prior criminal convictions and criminal background checks in the hiring process for public employers. The bill applies to the State and its political subdivisions but not to private employers.

Under H.B. 56, no appointing authority may consider an applicant’s prior criminal record until the applicant has been selected for appointment and the appointing authority is prepared to make an offer of employment. In other words, the appointing authority must make a conditional offer of employment before inquiring into the criminal background of an applicant. The bill does permit an exception for those positions where the Ohio Revised Code or federal law disqualifies an applicant from the positions. In these situations, the appointing authority may only inform applicants of these disqualifiers but the restrictions on the timing of an inquiry contained in the bill will apply.

Unless specifically disqualified from a position under state or federal law, an appointing authority may not automatically disqualify an applicant for a conviction or guilty plea without first considering factors enumerated in the bill. These factors include whether the offense directly relates to the responsibilities of the position for which the applicant applied, the nature and severity of the offense, the age of the applicant at the time of the offense, the date of the offense, the length of the time the applicant has either not been incarcerated or under any correctional supervision, and any documentation that demonstrates the applicant’s rehabilitation. Appointing authorities likely will need to keep detailed records of their consideration of these factors in the event an unsuccessful candidate challenges a decision not to hire.

The new bill indicates that a record of arrest without a conviction or guilty plea may not be considered although it is unclear whether an appointing authority could still consider the underlying facts relating to the arrest and reject a candidate on this basis. If a prior conviction or guilty plea is a basis for rejecting an applicant, the appointing authority must notify the applicant in writing, presenting the specific evidence that supported the decision to reject the applicant. This requirement will result in additional mandatory documentation of the reason an applicant was rejected. Currently, in general, it is adequate for an employer to state that a more qualified applicant was hired. If H.B. 56 becomes law, appointing authorities will be required to provide documentation that can later be used against the appointing authority in the event of litigation. Such a document also will be public record. It may be more difficult for boards and commissions to meet these requirements since those entities may have to approve a written explanation by resolution.

The bill also clarifies in Chapter 124 of the Ohio Revised Code that conviction of a felony may be a basis for removal or discipline if the conviction occurs while the employee is employed in the civil service. The bill does not indicate how alleged violations of the proposed law will be addressed.

These proposed changes will make it more difficult to reject candidates for employment. The proposed changes are similar to efforts by the Equal Employment Opportunity Commission to reduce an employer’s reliance on criminal charges and convictions in personnel decisions. The bill has nineteen sponsors and has been referred to the House Commerce and Labor Committee. FHKA will continue to monitor the status of this bill.

To read the newsletter in its entirety, please click here.