Possible Ramifications on the Ohio Supreme Court Ruling on Employment Screening

This case is one of probably several that could set the table for the forthcoming legal issues concerning the appropriate use of background checks as part of an employer screening program. According to WKYC, in the Cleveland area, the Ohio Supreme Court has upheld the state law that allows school districts to conduct criminal background checks on non-licensed school employees . The case brought before the court addressed the complaint that terminating non-licensed employees who were hired prior to 2007 was invalid. The reason--there was no mandated background checks prior to 2007 and the provision that requires districts to terminate employees if they have had prior convictions for certain specified criminal offenses.

The Ohio Supreme Court decision was 5-2 . The Court, in handing down this decision, held that, as applied to administrative employment contracts entered into by school districts that are subject to R.C. Chapter 124, R.C. 3319.391 does not violate the provision of the Ohio Constitution that prohibits retroactive laws. I believe this was a wise and fair decision on the part of the Court.

This case has ramifications on different levels as it may apply on a national level to employers concerned with the pre-employment screening practices that are coming under fire. Although this is the state and not the federal court that handed down this decision it cannot be ignored on the broader scope. With a 5-2 majority the court ruled essentially for protection in the workplace. I see it has a virtual mandate for, in this case, the schools to take whatever action necessary to not only preclude offenders from employment but to discharge anyone who has previously been hired and is found to have a convictions for a crimes for which rehabilitation was precluded under the ODE administrative guidelines.

As the controversy grows in an attempt to dilute both the importance and the comprehensive imperative of background checks, such court rulings, I would think, affirm employer rights. Employers, after all, are the subjects of liability suits, public embarrassment, and those who must bear the burden of seeing people killed or injured on the job because they hired someone with sex offenses or a violent criminal record. To not allow employers to conduct the necessary background checks on their new recruits and current staff is both highly illogical and in strict defiance of any rational or pragmatic thinking.

I certainly believe that not everyone should be removed from consideration from prospective employment because of past criminal convictions. There should be consideration forthe type of crime and how long ago the crime was committed. People deserve a second chance. But like everything else in this world, you cannot refuse employment to previously convicted felons, and you cannot grant employment without having concern for the safety of other employees and the public at large. To virtually force employers to hire convicted criminals when, clearly, in a depleted job market and a bad economy there are equally if not even more qualified employment candidates who have no previous criminal records, this is one heck of a burden.

Obviously, the Ohio State Supreme Court is not buying into the latest hyperbole that serves more to hamper employer rights than allow convicted felons to compete for jobs on an even playing field. In the cases where the candidate with previous criminal records has similar or better skill sets than the job applicant that doesn't, yes, there is a tangible level of unfairness. But, sad to say, this is not the most commonplace occurrence.

I think those advocating the rights of felons with respect for employment should weigh their passions against reality and take a more rational approach. Somewhere there is a logical stasis to this issue. But I don't see it yet.

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