“Ban the Box” for Public Employers in Ohio

In late December 2015, Governor John Kasich signed a law that prohibits public employers, including townships, villages, municipal corporations, and public school districts, from asking questions about an applicant’s criminal background on their job applications. Under the new law, the Fair Hiring Act, public employers are permitted to conduct background checks, but they can only do so later in the application process. The law takes effect March 23, 2016.

Under the new law, public employers will not be allowed to ask applicants about past criminal convictions on written job applications. It is permissible, however, for a public employer to include a general statement on the written application regarding criminal offenses which may preclude employment under the law (e.g., disqualifying offenses in the public school setting). Further, public employers will have the opportunity to inquire about an applicant’s criminal background later in the process, and public employers will not be prohibited from taking an applicant’s criminal history into account when deciding whether to hire an employee. Public employers, however, will face increased scrutiny about the manner in which they use the criminal background check information when making decisions regarding employment. Thus, public employers might want to consider the Equal Employment Opportunity Commission’s guidance that any decisions based on an applicant’s background, should be job related and consistent with business necessity.

There is some speculation as to whether the law applies to municipal corporations under the Home Rule Amendment to the Ohio Constitution. The issue is whether the law addresses a “matter of local self-government.”

In addition, the new law includes an amendment to Ohio Civil Service Law. Public employers are now clearly prohibited from using a felony conviction against a current classified officer or employee unless the conviction occurs while the classified officer or employee is employed in the civil service. If, however, the classified officer or employee is convicted of a felony while employed in a classified position, the employee may be removed from his or her position.

The new law does not apply to private employers.