New legislation affecting employment applications: “Ban the Box”

On December 9, 2015, the Ohio General Assembly passed House Bill 56, which contains provisions affecting the content of public employers’ employment applications. The initiative — commonly referred to as “Ban the Box” — is aimed at reducing barriers to employment for individuals who have some type of criminal history. The legislation prohibits public employers from including on employment applications any question concerning the criminal background of the applicant. The bill is currently awaiting the Governor’s signature. 

Notably, the law does not prohibit inquiry into the criminal background of the applicant. It simply prohibits the public employer from including such a question on the application. Many public employers (like schools) are required to conduct criminal background checks prior to the employment of individuals. This requirement is not affected by the new legislation. In addition, public employers may include on the application a notice to applicants that certain criminal convictions will disqualify them from employment in some or all positions. 

In sum, while employment applications may not, under the bill, include any question concerning the criminal background of the applicant, a public employer may still inquire as to any criminal background, and may consider the applicant’s criminal background when making hiring decisions.* Public employers (like schools) must continue to comply with any law that requires criminal background checks and determine whether applicants have any disqualifying convictions prior to employing them.

*NOTE: Caution must be exercised when making hiring decisions based on non-disqualifying criminal offenses. In 2012, the EEOC issued guidance regarding potential liability for discrimination when basing hiring decisions on an applicant’s criminal history.