Illinois Employers Can No Longer Rely on Conviction Records, Unless…
You knew that Illinois law prohibited employers from inquiring into or using an arrest record when making employment decisions, right? Well, that law (the Illinois Human Rights Act – or “IHRA”) was recently amended to also prohibit employers from taking adverse action against an applicant or employee based on a conviction record, unless:
There is a “substantial relationship” between the prior criminal offense(s) and the employment sought or held, AND
Granting or continuing employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
This prohibition applies to all terms and conditions of employment – for example, recruitment and hiring, promotions, discipline, training, termination, and other privileges and conditions of employment.
What is considered a “conviction record”
Under the IHRA, a conviction record includes, but is not limited to, information showing that a person has been convicted of a felony, misdemeanor, or other crime, placed on probation, fined, imprisoned, or paroled by any law enforcement agency or military authority.
What is a “substantial relationship”
To determine whether a “substantial relationship” exists, employers must determine “whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”
How do employers do that? They must consider the following six factors:
The length of time since the conviction;
The number of convictions that appear on the conviction record;
The nature and severity of the conviction and its relationship to the safety and security of others;
The facts or circumstances surrounding the conviction;
The age of the individual at the time of the conviction; and
Evidence of rehabilitation efforts.
What happens if the employer determines the conviction record disqualifies the individual from employment? Can the employer automatically refuse to hire the candidate/terminate the employee?
No! If the employer determines the conviction record disqualifies the individual from employment after considering the six factors, it must then engage in an “interactive assessment” with the individual, which is similar to what is required under the federal Fair Credit Reporting Act. This “interactive assessment” requires that the employer send the individual written pre-adverse action notice before a final decision is made, containing the following:
Notice of the disqualifying conviction(s) that is/are the basis for the preliminary decision and the employer’s reason for disqualification;
A copy of the conviction history report, if any; and
An explanation of the individual’s right to respond to the preliminary decision before the decision becomes final. The explanation must inform individuals that their response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record, or evidence of mitigation, such as rehabilitation.
The individual must get at least five business days to respond to the notice before the employer’s decision becomes final.
The employer must consider any information the individual provides.
If the employer makes a final decision to disqualify or take other adverse action, solely or in part because of the conviction record, the employer must send the individual written post-adverse action notice, containing the following:
Notice of the disqualifying conviction(s) that is/are the basis for the final decision and the employer’s reasoning for the disqualification;
Any existing procedure the employer has for the employee to challenge the decision or request consideration; and
The individual’s right to file a charge with the Illinois Department of Human Rights.
What should employers do now?
The new law took effect immediately, so employers should review their background check and hiring policies and practices ASAP to make sure they do not bar all individuals with conviction records from employment. They should revise their policies to comply with the new law and implement training to ensure decisions are made consistently and proper steps are taken, including required notice, if an applicant or employee does have a conviction record.
Laura Garofalo Law, LLC can help employers review their workplace policies and practices.