• Hey Ohio! Should employers be permitted to ask applicants if they have a felony record? A bill has been introduced into the Ohio House to prohibit employers from asking the question. HB 556. Before I send my response to our Ohio legislature, I would like your input. What do you think? Will this help put Ohioans to work, or simply create an additional burden on Ohio’s employers?

    First, it is important to note that there is no prohibition on asking about very old felony convictions in Ohio. Some states do have limits on the length of time a felony is considered reportable, but in Ohio only convictions sealed or expunged by the court can be legally concealed from an employer. See http://codes.ohio.gov/orc/2953.33. Even then, a conviction that is relevant to a particular job may still be reportable, for instance the sex offender who applies to work in a daycare, or the bank robber who applies to be a bank teller.

    Second, How would this law effect recruiters?. If this law were passed, it may pose some risk to recruiters who may be seen as influencing the hiring process. If a recruiter asked about a felony conviction and the person did not get the job, they could sue the employer and the recruiter and try to convince the court that both are in violation of the law.

    Third, I understand that obtaining work is a key factor in preventing recidivism. Reliable work provides an ex-convict with legal income, and the ability to help support a family. This is particularly important because a second, or perhaps most significant factor, is the maintenance of a support network. An ex-convict with a supportive family to live with, friends to set a good example, and stable family relationships is far less likely to return to crime.

    So, I would support legislation that helps ex-convicts to obtain employment. However, how do we tell an employer that they cannot ask about a past felony conviction? This legislation is particularly poor because it does not prevent the employer from discovering the conviction, or discriminating on the basis of the conviction. This legislation merely makes it more difficult for an employer to learn about the conviction, and prevents an ex-convict from being caught in a lie trying to hide the conviction. This encourages ex-convicts to hide their past instead of confronting it and learning to move past it.

    How do we tell an employer that given the choice between two equally qualified candidates they cannot choose an individual without a felony over an individual with a felony conviction? Employers also face liability for hiring individuals with criminal history. A bar who hires an individual with a history of violence may be subject to liability if that individual attacks a fellow co-worker or a customer. A delivery company who hires a driver with a felony DUI may be subject to liability when that driver kills someone while drinking on the job. Private employers cannot afford to take that risk and ignore publicly available conviction records. The only group that can afford to take these risks are government employers, and they should hire more ex-convicts. This would free up good labor for the private sector, and put the ex-convicts to work.

    So, in my opinion this law is bad, ineffective, and only places a burden on employers without helping the ex-convicts. I will put these thoughts into a letter for my representatives and I would encourage you to do the same. You can find your Ohio representatives here: http://www.legislature.state.oh.us/

    Do you agree or disagree? Let me know in the comments.

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    This entry was posted on Tuesday, July 6th, 2010 at 2:44 pm and is filed under Bryan M. Griffith, J.D., Business Law, Criminal Law, Employment Law, Small Business Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
  • 6 Comments

    Take a look at some of the responses we have had to this article.

    1. Dave
      Sep 15th

      I realize this was posted a couple months ago but thought I would contribute my thoughts.

      I am not from Ohio but as a convicted felon I know about the long-term impact of a felony conviction. I was convicted in 2001 of 2nd degree robbery. As a former heroin drug addict, I was involved in actions that I never would have thought I was capable of. I did not hurt anyone, nor do I believe I would have.

      I have been clean since then. In addition, I have gone back to school and worked hard to earn an Associate Degree (4.0), Bachelor Degree (Magna Cum Laude), and then an MBA.

      As a result of my former conviction, I am still having difficulty in obtaining gainful employment. I can only hope that my state will follow the example of Ohio. I truly regret my past and only wish to be a full contributing member of society. I may have served my sentence successfully but, in my mind, to truly make amends I must contribute to society in a positive manner. That begins with becoming gainfully employed.

      Thank you for your time,

      Dave

    2. Dave
      Sep 15th

      As an addendum to my previous comment, I just read the proposed legislation. I do think that it is relevant for companies to be able to inquire about recent convictions. At some point however, we, as a society, need to consider a person fully rehabilitated. In my case, I humbled myself to work in the fast food industry because it was the best I could do before returning to school. I think it is good for one to be humbled and work toward changing their own being.

    3. Sep 16th

      Dave, Thank you for sharing your experience. I wish more Americans shared your attitude about being a productive member of society.

      I understand your challenge, and I wish I knew the answer to successful re-entry after conviction. As for employment, I think your attitude is excellent. If you are able to start from the bottom, eventually your experience will outweigh the conviction and employers will be happy to have a hard working American on staff.

      Also, this can be a great opportunity to begin a new business. If you are your own boss, most customers will not care or inquire into your criminal convictions. Many great businesses have been started by people in dire circumstances who could not find employment.

      I wish you the best of luck!

    4. David
      Oct 4th

      I believe that if an exoffender is not breaking the law he or she should have the opportunity to work and be employed.

    5. billy
      Aug 21st

      The problem is not that a company is asking about a felony conviction but denies employment just because of that. Companies have a blanket policy these days. They do not take into consideration for how old the conviction is. If a conviction doesn’t matter, then why ask?

    6. Aug 22nd

      Thanks for your input Billy. Blanket policies of not hiring anyone with a criminal conviction are under attack by the EEOC and the Department of Labor, so companies should be abandoning those policies in favor of a more specific inquiry about the nature of the crime, and the applicant’s law abiding history since the conviction.

      Further, in my experience most of the best employers do take into account the individual circumstances of the conviction, the years of law abiding history since the conviction, and the nature of the job.

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