Submitted by bblalark on
Jurisdiction:
Area of Law:
Question:
I was recently terminated because my employer ran a background check on me. I've been employed with this company for 7 months 3 weeks & on may,27,20012 just one week after giving me a promotion they said they just pulled my criminal background and had to let me go. I never signed a disclosure with them giving permission to run a background & they never gave me a copy of what they said they found. Is this legal?
Selected Answer:
Submitted by DakotaLegal on
All Comments
Submitted by DakotaLegal on
Let’s look at your question two very different ways. First, your question: is it “legal” to conduct a background search under the circumstances you described? Second, is it a violation of any contractual right you might have with the company?
- The Law Of Background Searches In Ohio
Most importantly, you do have some protections from even being asked, let alone fired, for a possible arrest record. Because there are differences between arrests, convictions, and fines, Ohio has limited the way an arrest may be sued by an employer. So I can assume that you know what’s on your record (or “rap” sheet---meaning record of arrest and prosecution). If it’s a conviction, you will have a problem contesting its review. You can find Ohio’s rules against an employer asking about an arrest here… http://www.lac.org/lac/. One wrinkle to watch for is whether your employer is actually based in Ohio. There might be a situation where you are a sale representative, and work for a company based outside of Ohio.
The bottom line is that in most cases, it is not legal for a typical Ohio employer to ask you about any arrests.
Some jobs in Ohio are viewed as so sensitive that it might be malfeasance if the employer did not do a background check. “Direct care” providers, for example, have a fairly typical set of requirements and procedures to require a background check. http://www.odh. ohio.gov/rules/final/f3701-13.aspx. So the next question will be whether your job is covered by these specific requirements.
So while you didn’t mention what job you held, there are a host of jobs that have more ability to ask than other jobs. Examples are work with law enforcement, teaching, therapists, counselors, or many types of financial services. The bottom line is that a request for arrest or conviction needs to be related to the job.
- Contract rights to a job.
Once you have passed probation, you generally are entitled to certain protections under the company’s employee handbook or any workplace union. You need to start there, and look carefully to see the rights you have to things such as notice, performance review, and termination procedures.
You may also have a specific employment agreement. This may also involve other rights you have, including lost wages or benefits.
Your question also suggested another possible employment right. Is being on the job for seven months, by itself enough to give you property rights in the job? You can argue that any background check had to be done before your passing employment probation. Ohio is not (yet) a right to work state. I’d urge you to try and get help as a possible discrimination or unfair workplace issue, by asking for Ohio state administrative review: http://www.workplacefairness.org/agencies_OH.
Finally…
Try mediation of the problem…obviously, you were a valued employee. You almost certainly passed through a probationary period, perhaps as long as six months, and received a promotion. Legal aid may be available to you at low or no cost to discuss your “vested” job rights: http://www.ohiolegalservices.org/probono/legal-services-pro-bono-opportunities/.
I’d also suggest you eventually look into whether or not you can have any prior arrests expunged or sealed. The importance of this comes from the fact that most arrests and convictions are “public records.” This allows most employers to take notice of these facts, and you may not even know it. Sealing these records can help make a clean break from the past.
Let’s look at your question two very different ways. First, your question: is it “legal” to conduct a background search under the circumstances you described? Second, is it a violation of any contractual right you might have with the company?
Most importantly, you do have some protections from even being asked, let alone fired, for a possible arrest record. Because there are differences between arrests, convictions, and fines, Ohio has limited the way an arrest may be sued by an employer. So I can assume that you know what’s on your record (or “rap” sheet---meaning record of arrest and prosecution). If it’s a conviction, you will have a problem contesting its review. You can find Ohio’s rules against an employer asking about an arrest here… http://www.lac.org/lac/. One wrinkle to watch for is whether your employer is actually based in Ohio. There might be a situation where you are a sale representative, and work for a company based outside of Ohio.
The bottom line is that in most cases, it is not legal for a typical Ohio employer to ask you about any arrests.
Some jobs in Ohio are viewed as so sensitive that it might be malfeasance if the employer did not do a background check. “Direct care” providers, for example, have a fairly typical set of requirements and procedures to require a background check. http://www.odh. ohio.gov/rules/final/f3701-13.aspx. So the next question will be whether your job is covered by these specific requirements.
So while you didn’t mention what job you held, there are a host of jobs that have more ability to ask than other jobs. Examples are work with law enforcement, teaching, therapists, counselors, or many types of financial services. The bottom line is that a request for arrest or conviction needs to be related to the job.
Once you have passed probation, you generally are entitled to certain protections under the company’s employee handbook or any workplace union. You need to start there, and look carefully to see the rights you have to things such as notice, performance review, and termination procedures.
You may also have a specific employment agreement. This may also involve other rights you have, including lost wages or benefits.
Your question also suggested another possible employment right. Is being on the job for seven months, by itself enough to give you property rights in the job? You can argue that any background check had to be done before your passing employment probation. Ohio is not (yet) a right to work state. I’d urge you to try and get help as a possible discrimination or unfair workplace issue, by asking for Ohio state administrative review: http://www.workplacefairness.org/agencies_OH.
Finally…
Try mediation of the problem…obviously, you were a valued employee. You almost certainly passed through a probationary period, perhaps as long as six months, and received a promotion. Legal aid may be available to you at low or no cost to discuss your “vested” job rights: http://www.ohiolegalservices.org/probono/legal-services-pro-bono-opportunities/.
I’d also suggest you eventually look into whether or not you can have any prior arrests expunged or sealed. The importance of this comes from the fact that most arrests and convictions are “public records.” This allows most employers to take notice of these facts, and you may not even know it. Sealing these records can help make a clean break from the past.