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Hiring and Firing Decisions Based on Sealed Criminal Records

October 9, 2019
sealedcrimrecords

Hiring and Firing Decisions Based on Sealed Criminal Records

 

By:       Stacy V. Pollock, Esq.

            Mazanec, Raskin & Ryder

 

What do you ask potential applicants about their criminal history?  Hopefully you are in compliance with R.C. § 9.73 which prohibits public employers from asking any question about criminal history in an initial employment application (although it is permissible for the application to contain a statement regarding criminal offenses which might disqualify an individual from a position).  Criminal history questions for applicants after the initial application process is fair game, however.  Employers should inquire into whether an applicant has a criminal history.  But what about an applicant who may have an expunged or sealed criminal record?  Can you ask about that?  Can you refuse to hire and can you fire based on criminal records which have been expunged or sealed?

 

Although “expunged” and “sealed” records may be used interchangeably, the have different meanings and different legal implications.  Expunged records are records which are destroyed, deleted and erased in a manner that makes the record permanently irretrievable.  A sealed record, on the other hand, is not permanently irretrievable, but is shielded from the public’s view for most, but not all purposes. 

 

Revised Code § 2953.33 (B)(1) permits employers to question a person on sealed convictions if the question “bears a direct and substantial relationship to the position for which the person is being considered.” Note the statute refers to sealed, not expunged, records.  A person may not be questioned about an expunged criminal record relating to certain crimes involving the improper handling of firearms in a motor vehicle.  R.C. § 2953.33 (B)(2). 

 

The Ohio Supreme Court decided in 2017 that a public employer’s request for disclosure of criminal history bore a direct and substantial relationship to the position when the employer’s inquiry was limited to crimes which would statutorily disqualify the employee from the position.  Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, 151 Ohio St.3d. 1.  The Ohio Supreme Court expressly declined to require employers to specifically state which criminal statutes would bear a direct and substantial relationship to the position.  The Court recognizes that employers need to conduct a factual case-by-case analysis of each situation.  What may be a disqualifying criminal offense in one scenario may not be disqualifying in another. 

 

The takeaway for employers is: (1) do not ask for applicants to disclose criminal histories on initial applications; (2) employers should ask applicants for employment (and ongoing employees) to disclose criminal convictions; (3) employers can go a step further and require applicants and employees to disclose the conviction of sealed criminal records, but should do so in a way that the employer can justify to a court that the request was tailored to illicit responses which are directly and substantially related to the position sought or held. 

 

For more information about public entities conducting background checks, please check out the NPELRA Webinar “The Background Check Limbo: How Low Can You Go?” on August 28, 2019 presented by Stacy Pollock and Barry Tiffany.