Conducting Criminal Records Checks in Ohio
By Dean Boerger

In the shadow of the tragedy of September 11th, many employers are focusing more on evaluating an applicant’s criminal history before making a hiring decision. There are certain federal and state laws that employers must comply with when determining suitability of an applicant. Caution must be taken in complying with both federal and state laws regarding use of criminal records in determining whether to hire an applicant or not. Here are the general guidelines.

There are two types of law that regulate the use of criminal record checks.

Federal Civil Rights Law. Employers with 15 or more employees fall under this law. Asking applicants to disclose information concerning their criminal records may violate their civil rights. Before asking an applicant about a criminal record, ask yourself:

-Is there an adverse impact on minority applicants?

-If there is an adverse impact, is the record check related to the performance of the job or some other business necessity?

-If there is a business necessity, is there another way to investigate the applicant's background to get around the adverse impact?

State law. Some states restrict checks of criminal records to those employers who are checking for specified reasons. Some states even prosecute employers that violate laws preventing criminal record disclosure. On the other hand, most states prohibit people convicted of certain crimes from holding certain occupations, such as home health worker, daycare worker, teacher, etc.

In Ohio, on any employment application, a person may not be questioned about any arrest for which the records were expunged or any record that has been sealed. Ohio law also protects employees from disclosing whether they have been arrested or convicted for a minor misdemeanor drug offense because such an arrest or conviction does not constitute a criminal record.

Nursing homes, resident care facilities, county and district homes, homes for the aging, adult care facilities, adult day care programs, hospice care programs and home health agencies are required to conduct a criminal record check for each person under final consideration for employment in a position in which there is direct contact with older adults. The criminal record check is done through the Bureau of Criminal Identification and Investigation.

Employers hiring child-care personnel must obtain criminal background information about the applicants.

Ohio employers holding contracts with the United States or any of its departments or agencies that contain nondiscrimination clauses may require an employee or applicant for employment to furnish documentary proof of citizenship and may use fingerprint identification for security purposes.

Many businesses either do not have the staff or time to conduct a thorough criminal records check on potential applicants. In addition, many do not recheck current employees to insure they haven’t done anything since they were employed. The results may affect their employment status, such as acts of violence or of a sexual nature that would disqualify employees in some occupations. This also leaves room for a potential civil lawsuit against the employer should the employee commit a criminal act while working for the employer. Most companies will hire an outside agency such as a private investigator to conduct these background investigations and are capable of checking out of state records as well. There has been employers who hired an employee without checking criminal records from the state they just left and later find the police showing up to serve a warrant for their arrest for multiple charges committed in another state.

Businesses today, cannot afford not to check whom they are hiring. One lawsuit could easily equal the cost of 10,000 criminal records checks.

This article is not meant to be used as legal advice. Employers are encouraged to consult with a labor & employment attorney before making any employment decisions regarding an applicant or employee.

Dean Boerger is the Chief Investigator for Boerger Investigative Services, LLC; a private investigative agency specializing in insurance investigations, workers’ compensation investigations, background and employment investigations. He can be reached at 614-481-0777, by email at dean@boergerpi.com or visit www.boergerpi.com.