Is Your Bank in Compliance with the Illinois Job Opportunities and Human Rights Acts? Is Your Bank in Compliance with the Illinois Job Opportunities and Human Rights Acts?

Is Your Bank in Compliance with the Illinois Job Opportunities and Human Rights Acts?

Banks are justifiably concerned with the integrity of their employees because bank employees have access to customer funds and confidential customer information. However, banks must be aware of and comply with the requirements of at least two Illinois laws that limit employers' consideration of the criminal records and criminal histories of potential and current employees . They are the Illinois Job Opportunities Act and the Illinois Human Rights Act. 
Like many other states, Illinois enacted a so called "Ban the Box" law that generally prohibits employers from inquiring about, considering or requiring disclosure of a criminal record or criminal history during the early stage of the employment application process. The Job Opportunities for Qualified Applicants Act (the "Job Opportunities Act") applies to private employers with 15 or more employees in the current year or the preceding calendar year, so it applies to all but the smallest of Illinois Banks.
Specifically, the Job Opportunities Act states that an employer may not "inquire about, or into, consider, or require disclosure of the criminal record or criminal history of an applicant":
(a) until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview; or
(b) until after a conditional offer of employment is made to the applicant by the employer, if no interview is involved.
Unfortunately, the Act does not define the terms “criminal record” or “criminal history”, and the Illinois Department of Labor has not issued any rules or regulations defining these terms.
The Job Opportunities Act also does not prohibit employers from considering the criminal record or criminal history of an applicant when making the ultimate decision to hire the applicant.
Exceptions to the Job Opportunities Act
The Job Opportunities Act also has a few limited exceptions that may apply to banks. For example, the Job Opportunities Act's prohibitions do not apply to positions for which state or federal law requires employers to exclude applicants with certain criminal convictions from employment. 
The Job Opportunities Act's prohibitions also do not apply where a standard fidelity bond or an equivalent bond is required and a conviction of one or more specified criminal offenses would disqualify the applicant from obtaining the required bond. In this limited circumstance, the employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those specified offenses.
Enforcement of the Job Opportunities Act
The Illinois Department of Labor investigates alleged violations and enforces the Job Opportunities Act that has escalating civil penalties beginning with a written warning and increasing to a monetary penalty of up to $1,500 for every 30 days that pass without compliance.
The Department of Labor’s website includes a complaint form for the submission of claims for alleged violations of the Job Opportunities Act. Although the Job Opportunities Act authorizes the Department of Labor to adopt rules related to the Act and issue final and binding decisions, the Department has not yet finalized any rules interpreting the Job Opportunities Act or its implementation. Also, no reported Appellate Court Opinions have interpreted the Job Opportunities Act or its exceptions. However, the Job Opportunities Act is a remedial act intended to protect the rights of applicants for employment and will likely be interpreted liberally by the Department of Labor and the Courts.
Contrary to the Job Opportunities Act, the Illinois Human Rights Act actually prohibits employers from considering an arrest and certain criminal history in employment decisions. The Human Rights Act applies to employers employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or the year preceding the alleged violation. Section 2-103 of the Human Rights Act prohibits employers from inquiring into or using: (a) the fact of an arrest or (b) criminal history record information ordered expunged, sealed or impounded, as a basis for most employment, promotion, discharge and disciplinary decisions. 
However, the Human Rights Act states that the prohibition of the use of a fact of arrest does not prohibit the employer from obtaining or using other information that indicates that a person actually engaged in the conduct that led to the arrest. As one Appellate Court Opinion stated, the legislature intended this section of the Human Rights Act "to prevent an inquiry into mere charges of alleged criminal behavior, but to allow inquiry where criminal conduct has been proven." 

Enforcement of the Human Rights Act
Several Appellate Court Opinions that have interpreted the Human Rights Act have ruled that the Human Rights Act is a remedial act that should be interpreted liberally.
The Human Rights Act authorizes the Department of Human Rights to adopt rules and regulations, and to investigate, file complaints and settle charges brought under the Human Rights Act.
The Illinois Department of Human Rights investigates alleged violations of and enforces the Human Rights Act that provides for the award of damages and other remedies, including an award of attorney's fees.
Accordingly, banks should review their employment applications, including on-line applications, to ensure they comply with the Job Opportunities Act. Banks should also confirm that their hiring procedures and employment-related decisions comply with both the Job Opportunities Act and the Human Rights Act.
This article 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. 
David J. Chroust is of Counsel at Ice Miller LLP can be reached 630-955-6396 or at Ice Miller is an IBA Associate Member, and Mr. Chroust is a member of the IBA Associate Membership Committee. 

[1] The City of Chicago “Ban the Box” ordinance and Federal employment related laws and regulations also address these issues, but the Chicago "Ban the Box" ordinance and Federal employment related laws and regulations are beyond the scope of this article.

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