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Ohio Senate Bill 337 (SB 337) took
effect on September 29, 2012, and enacted several reforms to Ohio's
criminal justice system. One well-publicized reform was the expansion
of an individual's eligibility to expunge or seal criminal
convictions. Another less publicized reform actually grants employers
immunity from negligent hiring claims and serves as evidence of due
care against other types of negligence claims.
Prior to SB 337, an
individual could only expunge one prior conviction, and even then only
after certain time periods had passed and for certain types of
criminal convictions (DUI's, crimes of violence, and drug offenses
are examples of some crimes that are non-expungeable). SB 337
expanded this to allow an individual to expunge or seal records of
convictions for either:
- One felony
conviction; or
- Two separate
misdemeanor convictions (if not for the same offense), or one
felony and one misdemeanor conviction.
This reform essentially gives
individuals the chance to expunge records of two convictions, so long
as they are not both separate felony convictions.
However, even this expansion
of expungement eligibility still leaves a large number of individuals
ineligible. Part of SB 337 became R.C. §2953.25 which creates
something called a Certificate
of Qualification for Employment, or a "CQE"
for short. In essence, a CQE acts like a seal of approval from a
judge and provides some protections for employers who hire former
convicts. The purpose of this program is to remove "collateral
sanctions" from convictions, such as disqualification from
obtaining certain professional or occupational licenses or just to
improve a person's chances of getting a job with a criminal record.
An individual can apply for a
CQE through the Ohio Department of Corrections (if previously
incarcerated) or through the Common Pleas Court where they currently
reside (if not previously incarcerated). This certificate does not accomplish
what an expungement does, but it can help remove barriers for a
person convicted of a felony or misdemeanor in obtaining a
professional license or a job.
Qualifying for a CQE is not
easy and involves an intensive review by state rehabilitation officials,
judges, and probation departments as well as documentation of an
applicant's criminal history, work history, education, family
situation, and references. A CQE will not be issued to individuals
with certain types of convictions seeking employment in fields
related to those crimes, such as someone convicted of check fraud
applying for work in the financial services sector. CQEs are revoked
for subsequent convictions as well.
For employers, the most
important feature of a CQE is that it provides immunity to employers
for negligent hiring claims IF
the employer was aware of the certificate at the time of the alleged
negligence. It can also be introduced as evidence of an employer's
due care in hiring, retaining, licensing, leasing to, admitting to a
school or program, or otherwise transacting business or engaging in
activity with the individual to whom the CQE was issued, IF the
employer knew of the CQE at the time of the alleged negligence or
other fault. However, what happens if after being hired, the employee
subsequently demonstrates dangerousness or is convicted of or pleads
guilty to a felony, and the employer retains the individual as an
employee? In this instance, the employer may be held liable in a
civil action that is based on or relates to the retention of the
individual as an employee, but only 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 of which the
person has actual knowledge.
Applications for CQEs are on
the rise. Given the immunity that a CQE grants employers, there may
be an increase in hiring job candidates with minor criminal
backgrounds that were previously excluded from consideration. When
hiring applicants with known criminal convictions, employers should
request the CQEs and keep them on file due to the important immunity
they can provide to negligent hiring claims, but they can also serve
as admissible evidence against multiple types of claims involving
negligence related to the employee.
As this is an evolving area
of employment law, any questions regarding SB 337 and/or CQEs should
be directed to your Weston Hurd employment attorney.
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