Effective as of March 23, 2021, Illinois employers now have more rules to follow when running background checks on their applicants and employees. The state amended its Human Rights Act last month to include employment protections for individuals with criminal histories — essentially requiring employers to jump through a few extra hoops before making adverse employment decisions based on criminal background check results.
The new law was effective immediately upon signature, so Illinois employers must quickly evaluate their background screening programs and make any necessary updates to comply. A summary of the changes to the law is provided below.
Employers may not take adverse action against an applicant or employee because of a criminal conviction.
Exceptions provided under the new law include:
(1) The conviction record is substantially related to the position in question. This determination requires consideration of whether the job position offers an opportunity for the same or similar criminal conduct to occur and whether the circumstances leading to the criminal conduct will also occur.
(2) The employment would involve an unreasonable risk to the property or safety of others.
When deciding whether one of these exceptions applies, employers must also consider the following factors:
(1) The length of time since the conviction;
(2) The number of convictions that appear on the person’s record;
(3) The nature and severity of the conviction and its relationship to the safety and security of others;
(4) The factors or circumstances surrounding the conviction;
(5) The age of the individual at the time of the conviction; and
(6) Evidence of rehabilitation efforts.
The Interactive Assessment Requirement
Before taking adverse action, the employer must engage in an interactive assessment. After finding that one of the two exceptions above applies, the employer may only make a preliminary decision that the conviction disqualifies the individual from employment. At this time, the employer must notify the individual of the preliminary decision in writing, stating:
(1) The specific conviction(s) that are the basis for the possible disqualification from employment;
(2) The employer’s reasoning for that determination;
(3) A copy of the conviction report; and
(4) Notice of the right to respond to the notice to dispute the conviction information’s accuracy or provide mitigation or rehabilitation evidence.
The employer then must wait at least five business days to give the individual a chance to respond with additional information. The employer should only make their final decision after reviewing any other information provided by the individual. If the employer makes the final decision to take adverse action against the individual because of the conviction, the employer must then provide another written notice that includes:
(1) The specific conviction(s) that are the basis for disqualification from employment;
(2) The employer’s reasoning for that determination;
(3) Any existing procedure the employer has for the individual to challenge the decision or request reconsideration; and
(4) Notice of the individual’s right for the individual to file a charge with the Department of Human Rights
Employers may notice that the FCRA and the new Illinois law have similar required adverse action procedures but must be aware that they are not the same. As a reminder, the adverse action notices provided under the FCRA must include specific information as described below.
The pre-adverse action notice does not require specific language but must include a copy of the consumer report and a copy of the notice titled “A Summary of Your Rights Under the FCRA.”
The final adverse action notice must include:
(1) The name, address, and phone number of the consumer reporting agency (CRA) that supplied the consumer report to the employer;
(2) A statement that the CRA did not make the decision to take adverse action and therefore is unable to provide specific reasons for the decision; and
(3) Notice of the right to obtain a full file disclosure from the CRA and dispute the accuracy or completeness of the report’s information.
Though neither law prohibits employers from providing information required by the FCRA and the state law in the same communication, the specifics of both rules prevent employers from being able to use one-size-fits-all notices to send out to every disqualified individual. Employers are always encouraged to consult with their legal counsel regarding their compliance with all federal and state employment laws. The Illinois Department of Human Rights has provided a helpful FAQ.
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