Illinois Alert: If a Potential Hire Did Some Time, a New Law Prevents Employers From Learning About the Crime

July 6, 2021

On March 23, 2021, Governor Pritzker passed amendments to the Illinois Human Rights Act (“IHRA”) substantially limiting employers’ ability to consider an applicant or employee’s criminal history in the hiring process. ByrdAdatto shares what you need to know.

The purpose of these amendments is to prohibit discrimination based on prior conviction records and expand the criminal background check procedures required under the IHRA. The new law also amends the Equal Rights Act to require each employer with more than 100 employees to obtain an equal pay registration certificate. Under the new protections provided by the IHRA amendments, unless otherwise required by law, an employer cannot disqualify a job applicant with a conviction record without first determining whether there is a substantial relationship between the conviction and the job, or an unreasonable risk in employing the individual in the particular job.

Similarly, for current employees, an employer cannot use an employee’s conviction record as a basis for any employment decision (i.e. whether to promote, select for training, discipline or discharge the employee) without first determining if there is a substantial relationship between the conviction record and the job, or an unreasonable risk in allowing the employee to hold a particular job.

The new requirement that there be a “substantial relationship” between the criminal conviction and the job being sought or held may prove challenging for employers given its restrictive definition.  As defined in the amendments, a substantial relationship is “a consideration of whether the employment 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.” Alternatively, an employer may meet a different standard: “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.”

To assess if either standard has been met, employers must consider several other factors related to the convictions and the surrounding circumstances (i.e. how long ago it occurred and the nature and gravity of the convictions), as required by the Equal Employment Opportunity Commission’s individualized assessment standard.

Combining these standards, employers cannot base employment decisions on conviction records without, at the very least, considering whether there is an unreasonable risk that the employee or applicant will exhibit the same or similar behavior during the employment relationship. Illinois employers will also now have less flexibility to make employment decisions where there is no specific link between the employment position itself and the likelihood of the employee or applicant repeating the criminal conduct.

Employers’ compliance with the new procedural obligations under the IHRA amendments may also present challenges. First, employers must engage in an interactive assessment before taking an adverse job action, and can only take adverse action if the employer concludes they have passed the substantial relationship test or alternative test and have considered the requisite series of factors regarding the convictions and surrounding circumstances.

Second, employers contemplating taking an adverse job action based on a candidate’s or employee’s criminal record must comply with the following notice procedure with requirements in addition to factors set out by the Fair Credit Reporting Act:

  • After making a preliminary decision, provide the candidate or employee with a written notice with the substantive basis for any disqualification decision, among other information.
  • Wait at least five business days to allow the individual to respond.
  • If an adverse action is taken, provide additional written notice of the final decision containing: the disqualifying conviction(s), any procedure for the challenge or reconsideration of the decision, and, importantly, the individual’s right to file a charge with the Illinois Department of Human Rights.

Given the new amendments, now is the time for Illinois employers to review and revise, if necessary, employment applications and hiring procedures to ensure they do not include prohibited inquiries, revise adverse action notices to include the required language, and train human resources and employees involved in the hiring process of the new requirements.

At ByrdAdatto we are working hard to ensure our clients are well equipped and ready for operating their business. If you have questions regarding this alert, reach out to info@byrdadatto.com or call 214.291.3200.

ByrdAdatto attorney Rene Coover

Renee E. Coover

ByrdAdatto attorney Renee Coover is a trained opera singer and an excellent communicator.

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