The State of Illinois rang in the New Year ushering in the Cannabis Regulation and Tax Act, which took effect on January 1, 2020. The new law not only makes it legal for individuals in Illinois to possess and use recreational marijuana, but it also includes provisions to allow for certain previous marijuana-related convictions to be expunged. Convictions for possession of less than 30 grams of marijuana will automatically be expunged from police and court records and convictions for possession of more than 30 grams will require petitioning the court for expungement. The state expects at least 700,000 records to be expunged under the new law by the end of 2024. Below are a few common questions that we are hearing from employers.
Will background checks return expunged marijuana convictions?
Probably not. Records that are expunged from public view are not available to background screening companies, such as ESS, so the old conviction is not likely to make it on to any future consumer reports.
How will expungement under the new law affect past adverse actions employers have taken based on convictions that have since become expunged?
Expungement should not have any effect on your company’s past employment decisions. The law doesn’t require you to go back in time and reconsider any applicants that were previously disqualified due to criminal convictions involving the possession or use of marijuana.
Can employers make employment decisions based on known past-convictions that have since become expunged?
This is not advisable. 775 ILCS 5/2-103 makes it unlawful for Illinois employers to make employment decisions based on arrest records alone. “Arrest records” include arrests that did not lead to a conviction as well as convictions that were later overturned or expunged. Though employers are not required to undo past employment decisions under the new law, they may not make future decisions based on any information concerning expunged records that the employer may already have. For example, if a previously disqualified applicant re-applies for the same position after her record has been expunged, the employer should not rely on its knowledge of the expunged conviction to again disqualify her from employment. As always, ESS recommends consulting with legal counsel regarding your company’s unique employment and legal needs.
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