Illinois’ new restrictions on criminal-background inquiries in employment applications and otherwise

by Christopher Graham and Joseph Kelly

[background check]

As of January 1, Illinois joined 12 other states and almost 100 cities and counties with so-called “ban-the-box” laws. The banned “box”, common in employment applications, is for checking off whether an applicant has a criminal conviction. Here’s a recent list of all of the states, counties, and municipalities with some version of this law.

Under the new Illinois law, known as the “Job Opportunities for Qualified Applicants Act”:

An employer or employment agency may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency.

The Act thus addresses not only application inquiries about criminal records and histories, but other pre-employment crime-related inquiries. The Act applies to employers with at least 15 employees. A similar Chicago ordinance applies to Chicago employers, regardless of the number of employees.

The Act’s restrictions don’t apply if the employer is: (1) required by law to exclude applicants with criminal convictions, as is the case with certain types of jobs; (2) required to be bonded and an employee with a conviction would prevent the employer from getting that bond; or (3) hiring applicants licensed under the Emergency Medical Services Systems Act.

The Act also “does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or State law or the employer’s policy.”

The Illinois Department of Labor may investigate potential violations and assess penalties. The Illinois Attorney General may bring civil suits on the Department’s behalf. A single violation will result in a written warning and requirement to remedy. Penalties escalate to $500 for a second offense, and $1500 for each violation thereafter.

If you’re a covered employer and you haven’t done so already, you should review your company’s job descriptions or otherwise consider the requirements of an employee’s job to determine whether it is exempt from the Act’s restrictions.

You also should promptly revise your employment applications for all covered positions to eliminate any question or anything else requiring an applicant to disclose anything about a conviction or other criminal history.

For information about other restrictions on inquiring about criminal histories, see our recent post “What you need to know about background checks for hiring, firing, and other employment decisions”.

Tags: Illinois, background checks, criminal record, criminal history, hiring, applicant, Job Opportunities for Qualified Applicants Act, ban-the-box, ban the box, employment applications, Chicago

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