On March 23, 2021, Illinois Governor Pritzker signed into law Senate Bill 1480, which amends both the Illinois Human Rights Act and the Illinois Equal Pay Act and requires employers to report EEO-1 and pay data to the Illinois Secretary of State.
In this article we will focus on the amendment’s impact on the use of criminal background checks by employers in the hiring process.
Essentially, the amendment provides that an employer may only consider an individual’s criminal conviction history if there is a substantial relationship between the criminal history and the position sought or held, or if the employer can show that the individual’s employment raises an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
You can see the full text of the Amendment here. But let’s break it down for you:
The amendment sets out a definition of “Conviction Record” as:
“information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”
USING CONVICTION RECORDS IN EMPLOYMENT DECISIONS
Under the Amendment, an employer (which includes employment agencies and labor organizations) cannot use a conviction record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment – with certain limited exceptions.
This means the restriction on use goes beyond simply hiring practices. The restriction applies throughout the employee’s employment, so the use of criminal records is restricted for all decisions made with respect to the employee, including anything that could be considered an adverse action or an element that disqualifies the employee for a promotion or transfer.
WHEN CAN CRIMINAL RECORDS BE USED
Employers use of criminal records is limited to situations where:
- use of criminal records is specifically authorized by law;
- there is a substantial relationship between the previous criminal offense and the employment position.
- the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
The amendment clarifies what is meant by “a substantial relationship” between the offence and the position (see the second bullet above) by encouraging employers to consider whether the position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.
As to the phrase “unreasonable risk” (in the third bullet above) this is not defined, putting a burden on the employer to establish that a risk exists that no reasonable employer in similar circumstances should incur.
FACTORS TO CONSIDER
Employers that want to use criminal records in their decisions have a lot to think about. The amendment lays out factors Employers need to consider in determining whether the criminal record can be used:
- 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.
IF THE CRIMINAL RECORD IS A FACTOR, THEN WHAT?
Employers that determine the conviction record disqualifies the applicant or employee from the position must notify the employee of this decision in writing. This is called the “Preliminary Decision Notice” and it must include:
- notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
- a copy of the conviction history report, if any; and
- an explanation of the employee’s right to respond to the notice before the decision becomes final. The explanation needs to inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.
This determination is considered “preliminary” – not final – because the applicant/employee has at least 5 business days to respond to the notification before the employer can make a final decision. The employer has to consider any information submitted by the applicant/employee before making a final decision. If an employer makes the final decision solely or in part because of the conviction record, the employer must issue the Final Determination Notice which has to state:
- notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
- any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
- the right to file a charge with the Department.
BACKGROUND CHECKS AND OTHER LAWS TO CONSIDER
The new amendment to the Illinois Human Rights Act is just the latest in a long line of legal restrictions on employer’s use of background checks, including:
- In 2010, the Illinois Employee Credit Privacy Act “IECPA”was enacted to prohibit employers from inquiring about or using a current or prospective employee’s credit history as a basis for employment, discharge, or compensation, with limited exceptions.
- The Illinois Job Opportunities for Qualified Applicants Act – commonly referred to as the “ban the box law” went into effect on January 1, 2015 and prohibits private employers with 15 or more employees, from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and has notified the applicant of their selection for an interview or, if no interview, until a conditional job offer has been made.
- The Illinois Health Care Worker Background Check Act establishes a number of “disqualifying offenses” that requires health care and long-term care facility employers to terminate employees found to have certain criminal convictions unless there is a waiver granted by Illinois Department of Public Health.
- Of course there are also a number of federal laws that need to be taken into account, including the Fair Credit Reporting Act.
NEXT STEPS FOR EMPLOYERS RELYING ON CRIMINAL BACKGROUND CHECKS
To the extent Illinois employers have policies or practices in place allowing the use of background checks in hiring or criminal records in making employment decisions, those policies should be reviewed and revised to comply with the amended IHRA. Human resource professionals, managers and other employees with supervisory authority should receive training on this new amendment and the company’s updated policy on the use of criminal records.
Should you have any questions about background checks and using criminal records in your employment decisions or you would like to schedule an initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at firstname.lastname@example.org.
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