There are an estimated 65 million Americans with a criminal record. If you are among them, you might face an uphill battle in your job search. Surveys show that a majority of employers—a whopping 92%, according to one survey—get criminal background checks when hiring for some or all positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete, especially in today’s tight job market.

Illinois is one of a growing number of states that have passed a ban-the-box law. The law, called the Job Opportunities for Qualified Applicants Act, prohibits most employers from asking about criminal history until the later stages of the application process. The law applies to employers with 15 or more employees.

On March 23, 2021, Governor J.B. Pritzker signed a bill (SB1480) that—effective immediately—amends the Illinois Human Rights Act (IHRA) to, among other things, impose new requirements on employers that perform criminal history checks on their employees. For employers that currently have a multistate-compliant background check system in place, the new Illinois requirements do not pose significant additional compliance obligations, for two reasons:

(1) the new Illinois requirements mirror those that currently exist in a plethora of jurisdictions, including California and New York;

(2) the new Illinois requirements incorporate steps that employers are already required to take to comply with the Fair Credit Reporting Act (FCRA).  Multistate employers will, however, need to review their adverse action notices to ensure that they include language required under the amended IHRA.

Under the law, employers may not ask about or consider an applicant’s criminal history until they have:

• determined the applicant to be qualified for the position, and
• notified the applicant of being selected for an interview, or if there is no interview, extended a conditional job offer to the applicant.

Once the applicant is scheduled for an interview or received a conditional job offer, the employer may ask about conviction records or conduct a criminal background check. However, Illinois law prohibits all employers from asking about arrests that did not lead to conviction or records that have been sealed or expunged.

New Requirements

Under the newly amended IHRA, employers that perform criminal history checks are required to satisfy the following requirements before basing an employment decision on an individual’s “conviction record”¹:

1. Perform an “Interactive” (individualized) Assessment

The employer can base an adverse employment action on an individual’s criminal conviction only if:

(1) there is a “substantial relationship”² between the individual’s criminal offense(s) and the job sought or held; or

(2) the employer believes that the individual poses an “unreasonable risk” to the property or safety of the employer’s workforce, customers, or members of the public. If one of these factors can be met, the employer must next perform “interactive assessment”—commonly known as an “individualized assessment”—and consider the following mitigating factors:

• the length of time since the conviction;
• the number of convictions that appear on the conviction record;
• the nature and severity of the conviction and its relationship to the safety and security of others;
• the facts or circumstances surrounding the conviction;
• the age of the employee at the time of the conviction; and
• evidence of rehabilitation efforts.

These mitigating factors mirror those outlined in the EEOC’s 2012 Enforcement Guidance—which courts have rejected the EEOC’s ability to enforce—that have been adopted in a number of “ban the box” laws around the country.

If, after considering these mitigating factors, the employer chooses to move forward with the adverse action, the employer must comply with the IHRA’s new notice requirements.

2. Follow the Adverse Action Notification Process

The employer must notify the individual that their criminal conviction will be the basis for an adverse employment decision, provide the individual with a copy of the criminal history report obtained by the employer, and provide the individual with at least five days to respond with information impugning the accuracy of the conviction record, or some other mitigating evidence.  If the individual is unable to challenge the accuracy of the conviction, or provide sufficient evidence of mitigation, the employer can then send the individual a notification informing them of the adverse action being taken, and proceed with the disqualification.  Employers that perform criminal history checks using a third-party “consumer reporting agency” will be very familiar with this process.

3. Inform Individuals of Their Right to File a Charge

While the requirements for the pre-adverse action and adverse action notices under the amended IHRA do not materially deviate from the FCRA’s, the IHRA adds two requirements that may require multistate employers to amend their adverse action notices:

• The IHRA requires employers to include within both their pre-adverse action notice and adverse action notice “the employer’s reasoning for the disqualification.”
• The IHRA requires employers to state in their adverse action notice that the individual has the right to file a charge with the Illinois Department of Human Rights.

Employers that use multistate adverse action notices should ensure that their notices subsume these requirements.

While the new law does not prohibit an employer from obtaining criminal background checks, the law places a significant requirement on employers if they want to use this information to make any employment-related decisions.

Takeaways

Although the amendments to the IHRA may present familiar obligations to multistate employers, employers should not lose sight of the fact that a failure to fully comply with these new requirements could give rise to a charge of discrimination, and the employer’s being forced to deal with the scrutiny of the Illinois Department of Human Rights.  This could, in turn, lead to employers facing broader exposure in the form of suits filed under Title VII of the Civil Rights Act of 1964.  Illinois employers that have criminal history screening policies in place should perform a privileged review of their policies and form notices to ensure they satisfy Illinois’ requirements.  Employers that do not have policies to guide their criminal history screening process in Illinois should look to implement a policy that will effectuate compliance with the IHRA.

 

Chicago has amended its Human Rights Ordinance to address employment discrimination based on criminal history. Essentially, the new City law prohibits employers with fewer than 15 employees from inquiring about an applicant’s criminal history until a specific point in the hiring process.

The amendments apply to actions taken on or after January 1, 2015. A similar new state law that applies to employers of 15 or more employers also goes into effect on that date; this FAQ covers only the new City law, not the state law. However, one provision of the new City law, described in question 10 below, applies to all employers, regardless of size

1. What do I need to do before January 1, 2015 to comply with the new City law?

Before January 1, 2015, you should review your employment application process and related materials to make sure that you do not request permission to obtain, inquire into, or consider an applicant’s criminal history at the start of the application process.

2. Does this mean I can no longer base my decision to turn down an applicant on his criminal conviction?

No. The new City law does not impact your ability to turn down applicants on the basis of criminal convictions. However, you should be aware that other laws may impact how much weight you can give to an applicant’s criminal history in making your hiring decision

3. Does the new City law in any way interfere with the state and federal laws that exclude individuals with specific types of convictions from being hired for certain positions?

No. If federal or state law prohibits an employer from hiring an individual who has been convicted of a particular crime to fill a specific position, the employer remains obligated to follow federal or state law.

4. Does the new City law prohibit me from telling applicants in advance, such as in a job announcement, that convictions for certain offenses will disqualify them from a specific position?

The new City law provides that an employer may provide advance written notice about disqualifying convictions in three circumstances:

• If the opening is for a position where conviction of one or more specified criminal offenses automatically disqualifies an applicant under state or federal law;
• If the open position requires a bond, and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining the required bond; and,
• If the open position requires a license under the Emergency Medical Services (EMS) Systems Act, 210 ILCS 50/1.

5. Does the new City law allow me to conduct criminal background checks on prospective employees?

Yes. It remains permissible to conduct a criminal background check before making a hiring decision. However, you may not inquire into or consider an applicant’s criminal background until after you deem the applicant qualified and notify the applicant that he/she has been selected for an interview.

6. Does the new City law require me to wait to conduct a criminal background check even if I don’t conduct interviews as part of the hiring process?
   Yes. For positions that do not require an interview, you may conduct a criminal background check only after extending a conditional offer of employment to the applicant.
7. If, due to the particular requirements of the open position, I am legally required to secure a potential employee’s permission before conducting a criminal background check, does the new City law allow me to seek that permission at the time he fills out an application?

No. You must wait to request permission from the applicant to run the background check until you notify the applicant that he has been selected for an interview or, if you don’t conduct interviews, until you extend a conditional offer of employment.

8. Does the new City law prohibit me from telling applicants in advance that I may run a background check on them?

No. The City law does not prohibit you from disclosing in advance that you may run a background check on applicants.

9. If I contact an applicant to inform him that he was not selected for employment, and my decision not to hire the applicant was based, in whole or in part, on the results of his criminal background check, does the new City law require me to inform the applicant of this?
   

Yes. If you inform the applicant that he was not selected for employment, you must also inform the applicant that the results of his criminal background check were the reason, or one of the reasons, for your decision. This aspect of the new City law applies to all employers, regardless of number of employees.

10. Who is going to enforce the new City law?
    The Chicago Commission on Human Relations (CCHR) is charged with enforcing this law.
11. What are the penalties for violating the new City law?

Any employer who violates any of the provisions of the new law may be fined not less than $100 and not more than $1,000 for each offense. Additionally, violations of the law may result in business license discipline for the employer in question.

 

 

 

Two federal laws provide some protections for applicants with criminal records. The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else entirely.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:
• Get the applicants written consent ahead of time.
• Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
• Notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report.

Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:
• the nature and gravity of the criminal offense or conduct
• how much time has passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.