John Rush, a small business owner on the West Side of Columbus, has hired and trained more than 5,000 employees, many facing barriers presented by the criminal justice system. He is a believer in second chances.
Rush said he empowers his employees to “not be so naive or belittled into thinking that your past dictates who you are today to such a degree that it must be hidden.” He also supports any legislation that reduces the barriers preventing anyone from maximizing their potential.
House Bill 460 had its first hearing in the Criminal Justice Committee on April 3, 2024. The bill amends the current rules for sealing criminal records by shifting the responsibility from the convicted individual to the state and creating an automatic process managed by the Bureau of Criminal Identification and Investigation. It will also protect employers from any liability that derives from negligent hiring claims. The goal of the bill is to give job seekers a cleaner path to employment and to provide employers greater assurance they will be able to qualify for liability insurance.
After a person has served their prison sentence for a criminal conviction, a second sentence begins that imposes a wide range of restrictions on various rights, benefits and opportunities – collectively referred to as collateral sanctions. The National Inventory of Collateral Consequences of Conviction (NICCC) counts 1,250 provisions in Ohio law that create these limitations upon reentry into society.
The NICCC, managed by The Council of State Governments Justice Center, categorizes 77 percent of Ohio’s sanctions as employment related, often inhibiting people from returning to the workforce, sometimes with a skill they have learned while in prison.
Even though the term “rehabilitation” is used to label the agency that imprisons convicted felons, Ohio law doesn’t seem to trust that the individuals returning to their communities have been rehabilitated. The restrictions imposed by law on their activity appear on the surface to be a strategy designed to protect the public.
But according to John Cutler, Director of State Policy for the Alliance for Safety and Justice, in testimony on HB460 to the House Committee on Criminal Justice, establishing strong connections to the workforce reduces the likelihood of recidivism and increases public safety.
Tony Fiore, Director of Government Affairs for the Ohio Society of Human Resource Management, believes current state laws create problems for employers, as well. “From an HR perspective, employers are looking for qualified workers that are trustworthy and dependable,” he said. “They need to have confidence in the rehabilitation and corrections system.”
With almost a million people in the state with felony records, Fiore watches the labor pool closely. He said only 61 percent of the Ohioans aged 18 to 65 are working. He believes that number will rise if the automatic sealing of records proposed in HB460 is implemented in Ohio as it has been in 12 other states.
More states are working on similar legislation, driven by an unexpected lineup of strange bedfellows from both sides of the aisle.
Patrick Plein, the Director of CPAC’s Nolan Center for Justice, explained to the House Committee that the surest way to successfully reenter society after imprisonment is to find meaningful work. He said that unsealed criminal records reduce the chances of getting an interview by 50 percent and reduce compensation offers by 30 percent when compared to applicants without a visible record.
When a person completes their sentence for a misdemeanor or low level felony, a waiting period from six months to seven years begins, depending on the severity of the crime. At the end of this period, if they have no other criminal proceedings pending, they may apply for their record to be sealed. Once sealed, the record is only available to law enforcement, courts and other named purposes like certain licensing applications. This is a lighter treatment than expungement, a process that eliminates the record from view except in court proceedings where the person is being tried for another crime.
Sealing is requested by the offender through an application with a $50 filing fee, and possibly a court fee limited to $50 by the code. The court reviews the appropriateness of the application and asks the prosecutor for any objections.
After a hearing that is required to happen between 45 to 90 days later, a judge can order the record sealed. As written, the process seems fairly straightforward. But in real life getting a record sealed can be extremely difficult.
“I have not met a single person who is not a lawyer who has been able to get their record sealed,” said Amanda Hoyt, a consultant for the Ohio Transformation Fund. “That is why there are so many sealing clinics.”
Hoyt is working to educate Ohioans about the importance of moving the responsibility to the state. She said that in HB460, as currently proposed, all of the rules about which crimes are eligible to be sealed, the waiting periods, and the conditions imposed on the previously incarcerated person would remain the same.
The difference will be that the state will initiate a free process as soon as the sealing waiting period is over. The Bureau of Criminal Identification and Investigation, a division of the Attorney General’s Office, would be responsible for the process. The proposed bill gives the courts four years to work through the current list of eligible records.
As thrilled as she told the House Committee she is about this proposed bill, Sierra Cooper, the Columbus Reentry Team Lead for the Legal Aid of Southeast and Central Ohio, cautioned the committee that not everyone will want to have their record automatically sealed.
”There are many reasons a person may not want to seal their record the moment they are eligible,” Cooper said in her testimony. “The two scenarios I have seen in my practice involve clients who are seeking naturalization or citizenship, and clients who want to join the military.”
In those cases people must disclose even sealed records and ask the courts to make them available, which can delay their application process. Cooper asked the committee to consider adding an “opt out” provision in the law.
Employers like Rush are hiring workers with records who are not prohibited by law to perform the tasks he needs to run his businesses.
That isn’t the case with many other employers. More than 500 of the employment sanctions are classified by law as mandatory, meaning they might prohibit the employment, retention or licensing of a person with a specific conviction.
“HB460 is less about helping individuals who have spent time in prison and jail than it is about managing a perception that there is a strong liability for companies who hire such individuals,” Rush said. “After 25 years of hiring individuals who have spent some time in prison or jail, I simply don’t believe such a liability exists – at least no more or no less than with those who haven’t [been incarcerated.]”
Even if a business can legally hire a rehabilitated person, they are currently exposed to claims of negligent hiring or negligent supervision if that person engages in unlawful activity in the workplace. This liability exposure can cause insurance companies to deny liability coverage to companies who hire people with visible records.
Speaking for the Ohio Chamber of Commerce, Attorney Kevin Shimp told the committee that the immunity provision in the proposed law is a key protection for employers.
Fiore agreed. “The sealed record would allow the employer an affirmative defense if a plaintiff asserts that they were negligent in hiring an employee with a criminal record,” he said.
Since the passage of medical marijuana, Fiore said many employers have changed their stance on drug testing in the workplace. Hoyt added that the passage of recreational marijuana was an additional incentive to reduce the lingering stigma of drug offenses on the records of Ohioans.
The bill appears to have support from many national companies with a strong presence in the state. As Ohio continues to attract more employers, changes to our code that free up an existing labor force to meet the increasing demand for workers may pass easily.
We haven’t heard any opponent testimony yet, but Hoyt believes there will likely be some from prosecutors and other law enforcement agencies. Fiore said the debate will highlight underlying issues that we currently spend significant tax dollars to rehabilitate workers without creating an economy that can hire them on reentry.
House Bill 460 was introduced by two Republican House members, Brett Hudson Hillyer of Tuscarawas County and Bill Seitz of Hamilton County. It is currently in the House Committee on Criminal Justice. You can track the legislative activity here.
