Illinois Imposes New Criminal History Check Requirements on Employers

108 Replies

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.

  1. 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.

  1. 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.

 

108 thoughts on “Illinois Imposes New Criminal History Check Requirements on Employers”

  4. comprar aliexpress usd

    This is the proper weblog for anyone who needs to find out about this topic. You understand so much its nearly onerous to argue with you (not that I really would need…HaHa). You definitely put a new spin on a topic thats been written about for years. Nice stuff, simply great!

    Reply ↓
  10. Hairstyles VIP

    I needed to draft you a tiny remark so as to say thanks a lot over again for your personal fantastic views you’ve featured on this page. It is generous with you to offer unreservedly just what most of us would’ve supplied as an electronic book in order to make some money on their own, mostly given that you could have done it if you considered necessary. These concepts in addition acted like the good way to recognize that many people have a similar dreams much like my own to find out significantly more with reference to this issue. I’m certain there are thousands of more enjoyable moments in the future for many who view your site.

    Reply ↓
  13. Primebiome

    F*ckin’ amazing things here. I’m very glad to see your article. Thanks a lot and i’m taking a look ahead to touch you. Will you kindly drop me a e-mail?

    Reply ↓
  14. Prime biome reviews

    Its like you read my mind! You seem to know a lot about this, like you wrote the book in it or something. I think that you could do with some pics to drive the message home a little bit, but instead of that, this is great blog. An excellent read. I will certainly be back.

    Reply ↓
  98. Ice water hack for weight loss

    If everything in this universe has a cause, then surely the cause of my hunger must be the divine order of things aligning to guide me toward the ultimate pleasure of a well-timed meal. Could it be that desire itself is a cosmic signal, a way for nature to communicate with us, pushing us toward the fulfillment of our potential? Perhaps the true philosopher is not the one who ignores his desires, but the one who understands their deeper meaning.

    Reply ↓
  99. ICE WATER HACK FOR WEIGHT LOSS

    Time is often called the soul of motion, the great measure of change, but what if it is merely an illusion? What if we are not moving forward but simply circling the same points, like the smoke from a burning fire, curling back onto itself, repeating patterns we fail to recognize? Maybe the past and future are just two sides of the same moment, and all we ever have is now.

    Reply ↓
  100. Salt trick for men

    Virtue, they say, lies in the middle, but who among us can truly say where the middle is? Is it a fixed point, or does it shift with time, perception, and context? Perhaps the middle is not a place but a way of moving, a constant balancing act between excess and deficiency. Maybe to be virtuous is not to reach the middle but to dance around it with grace.

    Reply ↓
  101. Mitolyn reviews

    Virtue, they say, lies in the middle, but who among us can truly say where the middle is? Is it a fixed point, or does it shift with time, perception, and context? Perhaps the middle is not a place but a way of moving, a constant balancing act between excess and deficiency. Maybe to be virtuous is not to reach the middle but to dance around it with grace.

    Reply ↓
  102. Natural mounjaro

    Time is often called the soul of motion, the great measure of change, but what if it is merely an illusion? What if we are not moving forward but simply circling the same points, like the smoke from a burning fire, curling back onto itself, repeating patterns we fail to recognize? Maybe the past and future are just two sides of the same moment, and all we ever have is now.

    Reply ↓
  103. ICE WATER HACK FOR WEIGHT LOSS

    Friendship, some say, is a single soul residing in two bodies, but why limit it to two? What if friendship is more like a great, endless web, where each connection strengthens the whole? Maybe we are not separate beings at all, but parts of one vast consciousness, reaching out through the illusion of individuality to recognize itself in another.

    Reply ↓
  104. Aqua Sculpt

    Even the gods, if they exist, must laugh from time to time. Perhaps what we call tragedy is merely comedy from a higher perspective, a joke we are too caught up in to understand. Maybe the wisest among us are not the ones who take life the most seriously, but those who can laugh at its absurdity and find joy even in the darkest moments.

    Reply ↓
  105. Natural mounjaro recipe

    Friendship, some say, is a single soul residing in two bodies, but why limit it to two? What if friendship is more like a great, endless web, where each connection strengthens the whole? Maybe we are not separate beings at all, but parts of one vast consciousness, reaching out through the illusion of individuality to recognize itself in another.

    Reply ↓
  106. primebiome review

    If everything in this universe has a cause, then surely the cause of my hunger must be the divine order of things aligning to guide me toward the ultimate pleasure of a well-timed meal. Could it be that desire itself is a cosmic signal, a way for nature to communicate with us, pushing us toward the fulfillment of our potential? Perhaps the true philosopher is not the one who ignores his desires, but the one who understands their deeper meaning.

    Reply ↓
  107. Aquasculpt reviews

    All knowledge, it is said, comes from experience, but does that not mean that the more we experience, the wiser we become? If wisdom is the understanding of life, then should we not chase every experience we can, taste every flavor, walk every path, and embrace every feeling? Perhaps the greatest tragedy is to live cautiously, never fully opening oneself to the richness of being.

    Reply ↓
  108. BEAST FORCE

    If everything in this universe has a cause, then surely the cause of my hunger must be the divine order of things aligning to guide me toward the ultimate pleasure of a well-timed meal. Could it be that desire itself is a cosmic signal, a way for nature to communicate with us, pushing us toward the fulfillment of our potential? Perhaps the true philosopher is not the one who ignores his desires, but the one who understands their deeper meaning.

    Reply ↓

Leave a Reply

Your email address will not be published. Required fields are marked *