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:
- 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.
- 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.
- 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.
