Jul 25, 2013

With little fanfare, Ohio Revised Code Section 2953.25 became effective on September 29, 2012 and provides a means by which job applicants may obtain relief from certain bars imposed on employment or licensing in connection with either being convicted of or pleading guilty to a felony or misdemeanor.  The means by which this is accomplished is through what is called a Certificate of Qualification for Employment (CQE).

Ohio residents meeting certain qualifications may now submit a petition for a CQE to the Court of Common Pleas in the county in which they reside.  The Court, in conjunction with the Department of Rehabilitation and Correction, will then carefully evaluate the application, which includes but is not limited to the applicant’s criminal history, references, and employment history. 

Upon approval, a CQE has the effect of lifting automatic bars on employment or licensing and allows an employer to consider each applicant on a case-by-case basis.   The CQE, however, does not relieve the holder from:

• a requirement to register as a sex offender
• a driver's license suspension, cancellation, or revocation
• a restriction on employment as a prosecutor or law enforcement officer
• a denial, ineligibility, or suspension of a license as a health care professional if they: (1) were convicted of or pled guilty to murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, gross sexual imposition, aggravated arson, aggravated robbery, aggravated burglary, or unlawful distribution of an abortion-inducing drug; (2) are addicted to or were found to be improperly distributing controlled substances; or (3) are in default under a child support order.

A CQE may also be revoked if the holder is convicted of or pleads guilty to a felony offense that was committed after its issuance.

While there are obvious benefits to the holder of the CQE, Ohio Revised Code Section 2953.25 also provides employers who hire an individual with a CQE with some benefit as well.  An employer will be immune from a negligent hiring claim involving an employee holding a CQE if it has knowledge that the employee holds a CQE at the time the alleged negligence occurs.  If the employer knows of dangerous or criminal behavior engaged in by that employee that occurs after hiring, however, and fails to take action, the employer may be held liable in a negligence claim related to the retention of that employee.
At this time it is unclear to what extent an employer will be required (not merely permitted) to take into account that an applicant holds a CQE when making hiring decisions.  It is also unclear whether employers will be permitted to consider the fact that an applicant petitioned but was not approved for a CQE.  Employers should seek the advice of counsel concerning how to adapt their hiring practices to this new development.