On March 23, 2021, Illinois Governor J.B. Pritzker signed amendments to the Illinois Human Rights Act (“IHRA”) that are effective immediately and that will impose significant compliance burdens on Illinois employers who conduct criminal background checks of applicants and employees. The new law limits the extent to which employers can use criminal convictions in hiring and other employment decisions with respect to Illinois employees and requires a multi-step communication process with the applicant or employee before a criminal conviction can be used as the basis for an adverse employment action.
Under the new law, employers in Illinois are now prohibited from taking any adverse action against an applicant or employee (e.g., refusing to hire, denying a promotion, etc.) based on a criminal conviction record unless either one of two things is true:
To establish that there is a substantial relationship between a criminal offense and the employment position, an employer must consider 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. Furthermore, in evaluating a criminal conviction—i.e., whether it meets one of the two permissible circumstances in which criminal convictions can be used in making employment decisions—an employer must consider six factors:
In addition to the fact that Illinois employers are now required to engage in a detailed substantive analysis regarding an applicant or employee’s criminal conviction history before making any decisions using that conviction history, Illinois employers must now follow a two-step communication process with the individual in question.
Step 1 – Communication of Preliminary Decision
If, after evaluating the required factors, an employer decides that the individual’s criminal history makes the individual unsuitable for the position in question, the employer must provide written notification to the individual containing the following:
The employer must provide the individual with at least five business days to respond to the preliminary notice and must consider any information supplied by the individual in response.
Step 2 – Communication of Final Decision
If the employer, after considering any information supplied by the individual in response to the preliminary notice, intends to proceed with disqualifying the individual based on the criminal conviction, the employer must provide a second written notice to the individual containing the following:
Illinois employers that conduct criminal background checks as part of their hiring process will need to ensure that they have protocols in place to comply with both the substantive and procedural requirements of the new law. Employers will need to take particular care with respect to the requirement that they provide a written explanation of the basis for the decision to disqualify an individual based on a criminal conviction. Because this written explanation can be challenged by the individual through a charge of discrimination under the IHRA, poorly-drafted or incomplete explanations could come back to haunt employers. Employers will also need to ensure that the multi-step procedural communication process that is required with respect to criminal convictions is coordinated with their existing processes for pre- and post-adverse action notices under the Fair Credit Reporting Act (“FCRA”).
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