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New Illinois Law Restricts Inquiry Into A Job Applicant’s Criminal History

Adding to the long list of questions Illinois employers cannot ask job applicants, Illinois passed what is often called a “Ban the Box” law which goes into effect January 1, 2015. The actual law is called the “Job Opportunities for Qualified Applicants Act.” In a nutshell, the Act prohibits employers from considering or even asking about a job applicant’s criminal record or history until after the employer has evaluated the applicant and decided that the person is qualified for the position and has notified the applicant of an impending interview. If the employer does not do interviews for the position, it must make a conditional offer of employment before inquiring into the applicant’s criminal record or history.

The Act applies to any employer that has 15 or more employees in the current or preceding calendar year. The Act does not apply if federal or state law prohibits someone with a criminal conviction from holding the job at issue. The Act also does not apply to the hiring of individuals licensed under the Emergency Medical Services Systems Act.

The Act does allow an employer to notify applicants of certain criminal offenses that disqualify applicants from a particular job. Employers need to be careful, however, because doing so could subject the employer to claims of unlawful discrimination. The Equal Employment Opportunity Commission has promulgated guidance stating that any such disqualification policy based on criminal convictions must be job related and consistent with business necessity.

What changes should covered employers make so that they do not run afoul of the Act? Most obviously, change job application forms so they do not ask about convictions or criminal history. Also, stop doing criminal background checks before scheduling a job interview or, if there won’t be interviews, until after making a conditional job offer. Finally, review job descriptions to determine whether any of the employer’s jobs fall within any of the exceptions to the Act.

What happens if an employer violates the Act? The Illinois Department of Labor can seek civil penalties in court or via administrative proceedings. Those penalties include a written warning with 30 days to cure for a first violation. There is a maximum $500 fine for a second violation. Fines may be levied up to $1,500 for subsequent violation or where the employer fails to remedy earlier violations in a timely manner.

If you have any questions about the Act, please contact the attorney at WilliamsMcCarthy with whom you normally work.