By Brad E. Bennett*
On December 9, 2015, House Bill 56, known as the “ban the box” bill, passed both the Senate and the House. The bill becomes effective within ninety (90) days of Governor Kasich’s approval. This bill prevents all public employers, including counties, townships, and municipal corporations, from asking about previous criminal convictions on their job applications. The bill also modifies Ohio’s civil service law, making it clear that classified employees who are convicted of a felony “while employed in the civil service” may be removed under R.C. 124.34(A). Further, if an unclassified employee loses their position because they are convicted of a felony “while employed in the civil service,” the employee forfeits their right to resume a position in the classified service under R.C. 124.11(D)(3)(a).
The bill does not prohibit a public employer from including in a job application a statement, notifying applicants about potential disqualification, if they have a particular criminal history. The bill also does not prohibit public employers from inquiring about felony convictions later in the hiring process. The inquiry is only “banned” from the job application itself.
Public employers should also remain mindful of the EEOC’s 2012 Enforcement Guidelines. The EEOC has taken the position that employers cannot refuse to hire applicants simply because they have a felony conviction. Instead, the EEOC requires employers to demonstrate that the refusal to hire based upon a conviction is “job related and consistent with business necessity.” This will typically require the employer to weigh various factors including the nature of the job, the type of conviction, and the amount of time that has passed since the conviction occurred.
What actions should public employers take now? Public employers should immediately review and revise their job applications to ensure that they comply with House Bill 56. They should also provide training to managers involved in the hiring process to ensure compliance with House Bill 56 and the EEOC’s 2012 Enforcement Guidelines.
Brad E. Bennett, an OSBA Certified Specialist in Labor and Employment Law, practices at the firm’s Columbus office. He is well versed in all areas of labor and employment law including assisting public sector employers with establishing lawful hiring guidelines. If you have questions about the H.B. 56 or your hiring process, please contact: Brad E. Bennett | beb@zrlaw.com | 614.224.4411
