Termination of Employee Due to Criminal Background Check Uupheld by Supreme Court

Court upholds school districts' right to fire employees with criminal records

COLUMBUS -- The Ohio Supreme Court has upheld the state law provision allowing school districts to conduct criminal background checks on non-licensed school employees who were not subject to such 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 first provision requires Ohio school districts to conduct criminal background checks on non-licensed school employees who were not subject to such checks prior to 2007.

The other provision required districts to terminate the employment of current employees if it is determined that they have a prior conviction for certain specified criminal offenses.

In a 5-2 decision released Tuesday, the court 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.

Prior to 2007, R.C. 3319.39 required that Ohio public school systems must obtain criminal background checks on all licensed employees, i.e. all teachers and other school employees "responsible for the care, custody or control of a child."

The law prohibited any person found to have a conviction for certain specified offenses from being employed in such a position unless that person could demonstrate that he or she had been rehabilitated under administrative guidelines developed by the Ohio Department of Education.

The ODE guidelines specified that persons with past convictions for certain offenses, including trafficking in illegal drugs, could never demonstrate rehabilitation, in effect permanently barring a person with such a conviction from being employed in a licensed position by a public school system.

The background check and unconditional bar against employment of certain former offenders did not apply to unlicensed school employees.

In 2007, the General Assembly enacted a new provision, which expanded the background check and employment exclusion requirements of the pre-2007 statute to all employees of Ohio public school systems, including unlicensed workers whose duties do not involve direct or unsupervised contact with students.

The new statutory language specified that its requirements applied not only to new hires but also to all current unlicensed school employees.

It also required that any current school employee found to have a prior conviction for a crime for which rehabilitation was precluded under the ODE administrative guidelines "shall be released from employment."

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