Is Failure to Reveal Sealed Conviction Grounds for Termination?

The Ohio Supreme Court recently held that an employee was required to honestly answer registration application questions about sealed convictions that were directly and substantially related to his position. Was his failure to disclose the convictions grounds for termination?background check

Facts

“Phillip” worked as a training specialist for the Franklin County Board of Developmental Disabilities from 1995 to 2013. His duties included training and instructing employees with developmental disabilities to be in a workplace setting, assisting employees with personal needs, and developing and implementing training plans.

When Phillip applied for the position in 1995, the application asked whether he had ever been convicted of or pleaded guilty to a felony under the Ohio Revised Code, any crime that is a first-degree misdemeanor on the first offense and a felony on subsequent offenses under the Ohio Revised Code, or a substantially similar conviction under another state’s or federal law. He answered “no.”

Phillip acknowledged receipt of the board’s policies in 1995 and 2004. The policy manual identified conduct that could lead to discipline, up to and including termination. Conduct that warranted termination for a first offense included (1) “giving false information or withholding pertinent information called for in making application for employment,” (2) dishonesty, and (3) failing to maintain registration required for a position with the board.

Prior to Phillip’s employment with the board, an Ohio court sealed his prior conviction. The order sealing his conviction stated that it was determined that proceedings in the criminal case did not occur, the conviction was sealed, and records related to the conviction could be used only for permitted purposes under extremely limited circumstances.

As a training specialist, Phillip was required to maintain his registration as an adult services worker with the board. He applied to renew his license four times: in 1996, 2000, 2004, and 2008. The registration application asked whether he had ever been convicted of a felony or misdemeanor other than minor traffic offenses.

The application instructed him to “answer this question even if the record of [his] conviction(s)” was sealed or expunged. In 2008, the application further stated that applicants had to “answer this question . . . regardless of whether or not the conviction appears on a criminal background check.” Each time Phillip applied, he answered “no.”

In 2013, the board ran criminal background checks on all of its employees and learned that Phillip had a sealed conviction. The board terminated his employment for “dishonesty and other failure of good behavior, i.e., you misrepresented your past criminal record on the application for employment and on each of four applications for certification/registration required for your position.”

Phillip appealed his termination to the Ohio State Personnel Board of Review, which determined it was reasonable for him to believe he was not required to disclose his sealed conviction on his employment application. However, his failure to disclose his conviction on the registration applications was dishonest and a failure of good behavior sufficient to justify his employer’s decision to terminate his employment. The trial court and appellate court affirmed his termination.

Ohio Supreme Court’s Decision

The Ohio Supreme Court affirmed the lower courts’ decisions upholding Phillip’s termination. The court began by noting that while Ohio Revised Code 2953.33(B)(1) restricts the use of sealed convictions, an employment or license application may require an applicant to disclose a sealed conviction if “the question bears a direct and substantial relationship to the position for which the person is being considered.”

Although Ohio public employers are now prohibited from asking about an applicant’s criminal history on an employment application, the law was not in effect when Phillip was terminated. Also, the law does not prohibit public employers from asking about criminal history on applications for licensure, registration, or similar privileges.

The court had to determine whether the registration application’s questions regarding sealed convictions were directly and substantially related to Phillip’s training specialist position with the board. Because the board is prohibited from employing persons with certain criminal convictions by statute, the court found that the questions were appropriate.

As an adult services worker, Phillip was required to maintain his registration. Thus, he was required to answer questions regarding sealed convictions. He had no excuse for failing to disclose his sealed conviction. The failure was sufficient to support the board’s decision to terminate his employment. Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, Slip Opinion No. 2017-Ohio-6953.

Takeaways

Employee honesty is crucial, and courts tend to recognize that fact. In certain circumstances, Ohio employers may require applicants to answer questions about sealed convictions so long as the questions are related to the position.

However, that would not be appropriate for every employer and every position. Even if questions about sealed convictions are not sufficiently related to a position, private Ohio employers may ask applicants about their criminal history, and applicants must answer those questions truthfully.

Jourdan Day, a contributor to Ohio Employment Law Letter, can be reached at 614-227-1980 or jday@porterwright.com.

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Author: Jourdan Day, Porter Wright