In the case of Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, Slip Opinion No. 2017-Ohio-6953, the Ohio Supreme Court found that questions on a registration application that “explicitly required disclosure of sealed convictions [* * *] did not violate [Ohio law] because the questions bore a direct and substantial relationship to [the plaintiff’s] position.” Accordingly, the Ohio Supreme Court affirmed the employee’s termination for dishonesty in failing to disclose his prior convictions when answering questions on his registration applications.
The plaintiff in this case was employed as a training specialist with a board of developmental disabilities. The plaintiff’s “position required him to maintain registration with the department as an adult-services worker. To that end, in 1996, 2000, 2004, and 2008, [the plaintiff] applied to renew his adult-services registration. Each registration application asked whether [the plaintiff] had ever been convicted of a felony or a misdemeanor other than a minor traffic offense and stated that he had to ‘answer this question even if the record of [his] conviction(s)’ had been sealed or expunged. The 2008 application also stated that he had to ‘answer this question [*
* *] regardless of whether or not the conviction appears on a criminal background check.’ On each of the four registration applications, [the plaintiff] answered ‘No’ to the question” despite his prior sealed conviction. Gyugo at ¶ 7.
The board of developmental disabilities eventually learned about the sealed conviction and terminated the plaintiff’s employment for dishonesty. The plaintiff appealed arguing that he was not required to disclose a sealed conviction under R.C. 2953.33, which provides that, “[i]n any application for employment, license, or other right or privilege [* * *], a person may be questioned only with respect to convictions not sealed [* * *] unless the question bears a direct and substantial relationship to the position for which the person is being considered.” Thus the central issue in this case was whether the questions on the registration applications bore a direct and substantial relationship to the position for which the plaintiff held.
The Ohio Supreme Court determined that a “the statutes and regulations governing employment by a county board of developmental disabilities and adult-services registration [* * *] compels the conclusion that the prior-conviction questions explicitly requiring disclosure of sealed convictions bore a direct and substantial relationship to [the plaintiff’s] position and adult-services registration.” Gyugo at ¶ 27. The plaintiff “was therefore not excused from disclosing his sealed conviction in response to those questions. His failure to disclose his conviction, despite an express requirement to do so, supports the board’s decision to terminate [the plaintiff’s] employment.” Gyugo at ¶ 37.
While the Ohio Supreme Court ultimately approved the use of prior-conviction questions for adult-services registration, it is essential for all public agencies to remember that “R.C. 9.73(B), [a statute] which took effect in March 2016, now prohibits public employers from including on an employment application any question concerning the applicant’s criminal history.” Gyugo at fn. 1. Thus, Ohio law currently prohibits public entities from inquiring into an applicant’s criminal history in any employment application – regardless of whether the question bears a direct and substantial relationship to the position for which the person is being considered. However, this new prohibition only applies to employment applications. The “prohibition does not extend to applications for licensure, registration or other rights or privileges.” Gyugo at fn. 1.
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Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.