Illinois Governor, J.B. Pritzker, recently signed the Employee Background Fairness Act into law, bringing significant changes to the hiring practices of employers in the state under the Illinois Human Rights Act. This law aims to ensure fairness in the employment process by prohibiting employers from disqualifying job applicants based solely on their conviction records, with a few exceptions. As an employer in Illinois, it is essential to familiarize yourself with the key aspects of this law to comply with its requirements and avoid potential penalties. Understanding these changes is crucial for employers in Illinois, as the law now prohibits the use of criminal records as a sole basis for employment decisions. Let’s delve into the details.

Employee Background Fairness Act

Equal Treatment for Employees with Criminal Records:

Under the amended Illinois Human Rights Act, it is now considered a state civil rights violation for employers to use an individual’s criminal conviction record as the sole basis for any employment decision, except in cases where there is a substantial relationship between the offense and the individual’s employment or if employing the individual poses an unreasonable risk to property or the safety of others. This provision took effect immediately upon signing the law. Previously, employers had the discretion to reject job applicants based on their criminal history, regardless of the nature of the offense. Illinois employers, including employment agencies and labor organizations, are now prohibited from using an individual’s previous conviction record to decline employment opportunities. This prohibition applies to various aspects, including initial hiring, promotions, contract tenure reduction, training opportunities, and apprenticeships. It is essential for employers to treat employees with criminal records in the same manner as any other employee or prospective employee, without segregation or different disciplinary procedures.

Exceptions to the Rule:

While the general rule is that employers cannot refuse employment based on criminal records, there are exceptions to consider. If there is a substantial relationship between a recorded criminal offense and the role the individual is applying for, employers may deny employment. Additionally, employment can be denied if hiring the individual, whether new or continued, poses an unreasonable risk to property or threatens the welfare or safety of the public or specific individuals. Furthermore, if the circumstances of employment suggest a repetition of the offense, employment may also be denied. In cases where a relationship between the criminal offense and the job or safety risk is determined, employers must conduct an individualized assessment before taking any adverse action.

The assessment should consider the following mitigating factors:

  1. Length of time since the conviction.
  2. Number of convictions on the record.
  3. Nature and severity of the conviction.
  4. Facts or circumstances surrounding the conviction.
  5. What age the person was at the time of the conviction.
  6. Evidence of rehabilitation efforts.

Employers are required to carefully evaluate these mitigating factors and their relevance to the position before making a final decision. The IHRA amendments require employers to consider specific factors when determining the substantial connection between the criminal offense and the role of employment. If these factors do not provide sufficient evidence to suggest that an employee could pose a risk, employers have no legal basis to deny employment opportunities.

Adverse Action Process and Notice Requirements:

In cases where an employer follows the established criteria and decides that an individual poses too great a risk for employment, certain steps must be followed. The employer must notify the affected individual that the conviction is the reason for disqualification, provide a copy of the criminal history report, and grant the applicant or employee a five-day period to submit information that could convince the employer not to take adverse action. Applicants have the opportunity to respond and challenge the initial decision, as part of an interactive assessment. They have five business days to provide evidence of inaccuracy or mitigation. For example, if an applicant believes the conviction history report is incorrect, they must provide proof. If they claim rehabilitation, they must substantiate their assertion. Employers are legally obligated to fully consider any response and evidence provided by the applicant. If the applicant doesn’t challenge any details about the accuracy of their conviction or provide sufficient evidence to prove their case, the employer may continue the process of notifying the individual about the adverse action being taken, ultimately resulting in disqualification.

Updates to Adverse Action Notices:

Employers conducting criminal history checks using third-party consumer reporting agencies will find the new process familiar, as it aligns with the existing requirements of the Fair Credit Reporting Act. However, there are two additions that employers should take note of. The law mandates that the reasoning for disqualification must be included in both pre-adverse action and adverse action notices. Furthermore, the affected applicant or employee must be informed of their right to file a charge with the Illinois Department of Human Rights.

Consequences of Non-compliance:

It is crucial for employers to understand that there are considerable penalties under the Illinois Human Rights Act if you do not comply. Penalties may include uncapped compensatory damages, back pay, front pay, reinstatement, attorneys’ fees and costs, and even punitive damages. Therefore, it is in the best interest of employers to ensure compliance with the Employee Background Fairness Act.

The Employee Background Fairness Act in Illinois introduces significant changes for employers in the state, prohibiting them from disqualifying job applicants based solely on conviction records, with specific exceptions. By conducting individualized assessments and considering mitigating factors, employers can make informed decisions regarding employment while adhering to the law’s requirements. Complying with the notice and disclosure obligations is vital to avoid potential penalties. Stay informed about these regulations to create a fair and inclusive work environment while avoiding legal complications.

We can help make sure you are compliant with the new laws. Contact us today and let us get your business on the right path.

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Disclaimer: This article is intended to serve as a general summary of the issues outlined therein. While this article may include general guidance, it is not intended as, nor is a substitute for, qualified legal advice. Your review or receipt of this article by Lexern Law Offices, Ltd. (the “LLG”) or any of its attorneys does not create an attorney-client relationship between you and the LLG. The opinions expressed in this article are those of the authors of the article and does not reflect the opinion of the LLG.