Illinois Joins the Trend Limiting Employers' Use of Criminal Background Checks
On July, 19, 2014, Illinois Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act into law making Illinois the fifth state to “ban the box.” Illinois joins four states with existing “ban the box” laws: Hawaii, Massachusetts, Minnesota and Rhode Island. In 2013 and 2014 similar “ban the box” legislation was introduced in Florida, Georgia, Michigan, New Hampshire, New Jersey, Ohio, South Carolina and Washington. Over 60 cities and municipalities nationwide have adopted comparable legislation with respect to public employment including, Chicago, IL, Cleveland, OH and Indianapolis, IN. Employers should take heed of this continuing trend and make sure their practices comply with these laws.
Illinois’ Act is a part of a nationwide trend seeking to limit the use of arrest and conviction records in employment decisions. The Act prohibits private employers from inquiring into an applicant’s conviction history until the interview phase of the hiring process. Similar to other “ban the box” legislation, under the Act, which is effective January 1, 2015, employment agencies and employers of 15 or more employees are prohibited from inquiring about or considering an applicant’s criminal background until deciding to interview the applicant, or in the event the employer does not conduct interviews, after extending a conditional offer of employment.
The Act does not apply to: (1) applicants licensed under the Emergency Medical Services Systems Act; (2) employers subject to state or federal laws that require the exclusion of applicants with certain criminal convictions for certain positions; or (3) employers that require a standard fidelity bond for which certain criminal offenses would prevent the applicant from obtaining the bond.
This Act broadens the existing protections of the Illinois Human Rights Act which already prohibits the inquiry or consideration of an applicant’s or employee’s arrest history in employment decisions. Employers may still conduct a criminal background check on an applicant before hiring. The new law merely moves the inquiry into criminal history from the initial point of contact with the applicant until after the point in time in which the employer has decided to interview or extend a conditional job offer.
The Illinois Department of Labor is charged with enforcing the law as there is no individual private right of action. Penalties for violation of the Act include issuance of a warning for the first offense, followed by civil penalties recoverable by the Illinois DOL if the employer engages in subsequent offenses or does not timely remedy the initial violation.
Prior to the January 1, 2015 enactment of the law in Illinois, employers and employment agencies with locations in Illinois should thoroughly review their hiring processes to ensure compliance. Any inquiry into criminal or arrest history should be removed from job applications and interview questionnaires, and background checks should only be run once the employer has decided to interview or extend a conditional offer of employment. Employers with locations outside of Illinois also should become familiar with the state and local laws applicable to their area and update their hiring processes in those locations, as needed.
For more information please contact Stephanie Kelly
or any member of the Firm's Labor and Employment Group
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.