Employment Attorney Illinois | Criminal Background Check
If you are an Illinois employer, you should be aware of SB 1480, which Gov. J.B. Pritzker signed into law on March 23, 2021. In particular, the legislation revises the Illinois Human Rights Act (IHRA) and includes new requirements for business owners who complete criminal background checks on their workers.
Note that if you already have a multistate compliance background check process in place, you will experience insignificant changes. The new requirements are very similar to those in other jurisdictions, and they incorporate steps that many other employers already follow in compliance with the Fair Credit Reporting Act (FCRA). Nevertheless, you will still need to review adverse action notices (denials of employment) and make sure their language is in keeping with the amended IHRA.
Per the newly revised IHRA, employers who perform criminal history checks must comply with the following requirements before making an employment decision based on an applicant’s conviction record.
Performing an Individual Assessment
If the background check reveals one or more criminal convictions, the employer can use that information to deny employment only if 1) there is a relationship between the conviction and the position being sought, or 2) the employer perceives that the individual would pose a risk to the company workforce, its customers, or the general public.
To determine if one of those exceptions is applicable, the employer must consider if 1) there is “the opportunity for the same or similar offense to occur,” and 2) “the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” If either of the exceptions is valid, the employer must complete an individual assessment, to include the following mitigating circumstances:
- How long ago the conviction occurred
- How many convictions appear on the record
- The severity and nature of the convictions and how they relate to the security of others
- Circumstances and facts of the conviction
- How old the person was when the conviction occurred
- What rehabilitation efforts the individual has made
After reviewing and considering these factors, if the employer decides to move forward with the adverse action, then the employer must adhere to the IHRA’s new notice requirements.
Complying with the Adverse Action Notification Process
If the employer opts not to hire an individual based on a criminal conviction, the employer is required to notify the person that the criminal conviction is the basis for that decision, provide a copy of the relevant criminal history report to the individual, and allow the individual at least five days to appeal the accuracy of the conviction record or supply addition mitigating evidence. If the individual responds, then the employer must consider the additional information before finalizing a decision. If the individual has no information or evidence to challenge the report’s accuracy, the employer is then allowed to send the individual a letter detailing the adverse action. Employers who already perform criminal history checks with a third-party agency may already follow this process.
Informing Individuals of Their Rights to File Charges
The pre-adverse action and adverse action notice requirements under the revised IHRA do not substantially deviate from the FCRA requirements. However, the IHRA includes two stipulations that require multistate employers to modify their adverse action notices:
- Employers must include within both their pre-adverse action notice and adverse action notice their “reasoning for the disqualification.”
- Employers must state in their adverse action notice that the applicant has the right to contact the Illinois Department of Human Rights and file a charge.
After you complete a criminal background check, it is essential that you follow these expanded restrictions. If you have any questions about criminal conviction records and related hiring decisions, do not hesitate to seek legal advice. A seasoned employment attorney can help you make the individual assessment and advise you of your options and obligations to your job applicants.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.