By: Maryjo F. Pirages Reynolds
On July 19, 2014, Governor Quinn signed the Job Opportunities for Qualified Applicants Act into law. See, P.A. 098-0774, available at http://ilga.gov/legislation/publicacts/fulltext.asp?name=098-0774&GA=98&SessionId=84&DocTypeId=HB&DocNum=5701&GAID=11&Session. The new law has been referred to as “Ban the Box” legislation because it prohibits the use of criminal conviction inquiries on employment applications. The new law also prohibits the use of other pre-interview methods to screen out applicants with criminal convictions.
The law becomes effective on January 1, 2015. Its core requirement is that:
“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.”
In other words, an employer may not inquire into criminal history on the application form, and employers may not request or use criminal background information before deciding whether to interview an applicant. This is similar to the prohibition against asking about disabilities before making a job offer – the idea is to make it apparent to an applicant that a conviction has played a role in the decision to interview or hire.
The law will apply to all employers in Illinois with 15 or more employees in the current or prior calendar year. Employment agencies are also covered, so employers cannot use such agencies to screen applicants for criminal backgrounds.
The law carves out three exceptions: positions where employers are required to exclude applicants with certain criminal convictions from employment under State or federal law; positions where a standard fidelity bond or an equivalent thereof is required and an applicant’s conviction of one or more specified criminal offenses would disqualify him or her from obtaining such a bond (in which case, the employer could include a question or inquire as to whether an applicant has been convicted of those offenses); and, positions where individuals licensed under the Emergency Medical Services Systems Act are employed. For example, under these exceptions, employers governed by the Illinois Healthcare Worker Background Check Act would qualify for an exception to the Act). Notably, the exceptions are narrow.
What does this mean for you as an employer? Employers should remove any inquiries regarding criminal history from their applications and should wait to initiate a criminal background check until after it is determined that an applicant is qualified for the job and an invitation to interview has been extended to the applicant. Notably, employers may make a criminal background inquiry when notifying an applicant that he/she has been selected for an interview. The law also appears to allow an employer to condition an interview upon receipt of a response to the criminal background inquiry, and to allow an employer to advise an applicant that he/she will not be interviewed if the response reveals a disqualifying offense. Employers should update all background check policies and/or handbook provisions. Employers should also consider preparing a policy and/or form letter to advise applicants of background check policies, particularly for instances in which an applicant is not hired due to his or her background check.
Criminal background policies also should be reviewed to ensure that they do not expose an employer to claims of “disparate impact” discrimination. The Equal Employment Opportunity Commission recommends adopting a “targeted screen” policy. Such a policy enables employers to determine offenses that will generally disqualify applicants from employment, but then affords any disqualified applicants with the opportunity for individual assessment. An individualized assessment requires the employer to consider the nature of the crime, the nature of the job, and the timeframe that has elapsed, in order to determine whether eliminating the applicant from consideration for the position is job related and consistent with a business necessity. Here is a link to the EEOC’s guidance regarding criminal background checks: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Overall, employers are encouraged to review their existing employment handbooks and policies and consult with legal counsel to ensure compliance with Illinois’ new law. Finally, the passage of this law is a friendly reminder that employers also need to ensure compliance with the Fair Credit Reporting Act (FCRA) when using outside vendors to perform background checks.
If your business determines that it would beneficial to conduct a background check of applicants and/or employees, please contact our office for assistance. The FCRA contains numerous, complex requirements as to the notice and documentation necessary for employers to obtain and utilize background checks. Our firm can assist in supplying you with the necessary forms and disclosures. Additionally, we can advise you as to which type of consumer report (investigative versus non-investigative) would be most beneficial and counsel you as to the FCRA’s limitations and nuances for certain employers.
Failure to comply with the FCRA could result in an employer being legally responsible for harm to a prospective or current employee or a consumer reporting agency, in which case the employer would be responsible for damages and possibly attorney’s fees resulting from the non-compliance. Further, additional fines could be issued from an administrative agency or under a state law. Thus, employers should proceed with caution and consult with legal counsel when seeking to obtain and utilize background checks.
Please contact us with any questions as to the FCRA or the new law.
Maryjo Pirages is an associate attorney of the firm and a member of the Employment & Labor Law, Trusts & Estates, and Corporate & Business Groups. Maryjo counsels and represents employers in a range of employment matters, including statutory and administrative regulations compliance, contracts, and employee handbooks and policies. Maryjo’s goal is to work hand-in-hand with employers so that they may proactively implement and stay up-to-date with their policies in order to limit their liability and exposure. Additionally, she assists individuals and families in their estate planning and administration.