- Illinois Gov. J.B. Pritzker signed a bill into law March 23 that prohibits employers from taking adverse employment actions based on workers' criminal records, unless certain exceptions apply. The law amends the Illinois Human Rights Act.
- An employer may use a conviction record as the basis for an adverse employment action if it determines that a relationship between the offense and the job exists or if the offense poses a safety risk. The employer must perform an individualized assessment and consider several factors including length of time since the conviction, the nature and severity of the crime, and the age of the person at the time of conviction.
- The law also requires Illinois employers to notify an affected individual if a criminal conviction is the reason for a disqualification. It obligates employers to provide the applicant or employee with a copy of the criminal history report and give the person five days to respond.
Illinois' amendment to its human rights law builds on earlier actions the state took to boost employment among people with criminal records. In 2014, the state passed the Job Opportunities for Qualified Applicants Act, which prohibited employers from considering or asking about a job applicant's criminal record or history until the person had been deemed qualified for the job.
The state law adds two requirements that may require multistate employers with Illinois operations to amend their adverse action notices, according to attorneys at Littler. First, the IHRA requires employers to include within both their pre-adverse action notice and adverse action notice "the employer's reasoning for the disqualification." And second, the IHRA requires employers to state in their adverse action notice that the individual has the right to file a charge with the Illinois Department of Human Rights, wrote Littler Shareholder Kwabena A. Appenteng and Associate Andrew Gray.
In addition, the attorneys noted, employers should keep in mind that the failure to comply with the new requirements could lead to charges of bias. "Illinois employers that have criminal history screening policies in place should perform a privileged review of their policies and form notices to ensure they satisfy Illinois' requirements," the attorneys suggested, adding that employers that do not have policies regarding their criminal history screening process should put into place a policy that complies with the new law.
Illinois isn't the only state that recently required employers to make changes to its criminal history screening process. Last fall, Hawaii lawmakers tweaked their state's "ban the box" law, reducing the number of years that employers can consider when reviewing a job applicant's criminal conviction history. In February 2020, Maryland's ban the box law went into effect after lawmakers overrode a governor veto, barring employers with 15 or more full-time employees from asking job applicants to disclose criminal accusations or criminal records before a first in-person interview.