A lengthy and complicated new law enacted by the Ohio legislature and signed by Governor Kasich includes provisions that will make it easier for individuals with conviction histories to obtain employment and occupational licenses. Senate Bill 337 amends several Ohio statutes relating to collateral sanctions for criminal offenses by creating certificates of qualification for employment, reducing licensing restrictions for certain fields such as cosmetology, construction and security, and expanding courts’ authority to seal criminal records. A collateral sanction is a penalty, disability, or disadvantage that is related to employment or occupational licensing as a result of the individual’s conviction of, or plea of guilty to, an offense. It applies by operation of law in this state whether or not the penalty, disability, or disadvantage is included in the sentence or judgment.
One of the most important features of the new law is the mechanism it creates by which an individual who is subject to a collateral sanction may obtain a certificate of qualification for employment that will provide relief from certain bars on employment. The law also provides that an employer that knew of the certificate at the time of hiring will have immunity from liability as to a claim brought against it alleging harm due to the individual’s alleged negligent hiring. In addition, an employer that willfully retains an individual who was hired based on a certificate of qualification for employment will only be liable for negligent retention 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.
As it relates to occupational licensing, the law generally removes the disqualification of individuals for most criminal convictions that are not recent (either within one or three years depending on the licensing agency), crimes involving moral turpitude, or a disqualifying offense. The statute contains a comprehensive definition of "moral turpitude" that generally includes serious crimes of violence or sexual in nature. A "disqualifying offense" is defined as an offense that is a felony that has a direct nexus to an individual’s proposed or current field of licensure, certification, or employment.
The final feature of the law that may have relevance to employers expands the definition of eligible offenders who can have criminal convictions sealed. Under existing law, only first offenders may apply for the sealing of their conviction record. Convictions of certain specified offenses, and related convictions in specified circumstances, do not count as a previous or subsequent conviction. The bill replaces the term "first offender" with "eligible offender," which is defined as anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. Under both existing and the new law, convictions of certain specified offenses, and related convictions in specified circumstances, do not count as a conviction. As it relates to juvenile conviction records, the new law also removes sexual battery and gross sexual imposition from the list of offenses for which the records may not be sealed. Presumably, the relaxing of standards for sealing criminal records will render background checks for criminal convictions less reliable.
A copy of the Legislative Service Commission’s full bill analysis can be found here. The law goes into effect on September 25, 2012 – 90 days after Governor Kasich’s signature.