Last week, a unanimous Franklin County Court of Appeals affirmed the denial of unemployment compensation to an employee who was removed from his new job pending clarification of “a possible hit” on his criminal background check. Roberts Elec. Constr. Co., Inc. v. Quinichett, 2012-Ohio-1156. The employee was hired for and began working at a temporary job on the condition that he pass a required background check. Unfortunately, something that came up in the BCII database and he was removed from the job pending clarification. He wasn’t cleared for four weeks, but by then, the temporary job had been completed and he was not rehired. The Court compared his situation to that of a social worker who failed to obtain her LISW within fifteen months as required as a condition of the promotion.
The ODJFS found that the employee had been discharged for just cause for violating a rule of the employer that required a clear background check within a reasonable time after being hired. The UCBR reversed on the grounds that “a possible hit” on his BCII report which was eventually found not to be an impediment to his employment was not the fault of the employee. Unfortunately, there is nothing in the decision indicating what the “possible hit” was. Was it a mistake by BCII? Was it merely an arrest, which does not indicate any guilt or fault by the employee? Was it a conviction (which the employee should have anticipated would come up) and he was cleared because the particular crime (or age of offense) did not disqualify him from his particular job? We cannot tell this from the opinion.
The Common Pleas Court reversed on the grounds that clearing a background check within a reasonable period of time was analogous to obtaining a professional license within a certain period of time. Since the Supreme Court had previously held that it constituted just cause to terminate a social worker for failing to obtain a required LISW within fifteen months, the trial court concluded that the employee in this case was similarly at fault for failing to obtain the clear background check within a reasonable period of time for the temporary job.
I have to admit that I am confused because the social worker in Williams had failed to pass the required exam in the required time, whereas in the case, there is no indication that the employee could have anticipated that “a possible hit” which did not ultimately disqualify him from employment could be his fault – in that he has no control over how the records are reported by BCII. One can only wonder if he was given the opportunity to provide information to clear his record within a few days or demonstrate a mistake and he simply failed to do so. However, from the sparse facts provided in the opinion, it appears that the court instead concluded that it was not the employer’s fault (for hiring an employee before s/he passed a background check) and therefore, it should not have to pay unemployment in this case.
In any event, the Court of Appeals affirmed the common pleas court that the employee was not entitled to unemployment compensation for his failure to pass the background check for a month. Thus, employees who are hired before passing their background checks (a very bad idea in my humble opinion) are not entitled to unemployment compensation when they are removed for “possible hits” in the BCII report – even if the BCII report is incorrect or the “hit” turns out to be an offense which does not disqualify them from employment.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
