Illinois has passed sweeping legislation that amends a series of existing state laws, including the Illinois Human Rights Act, the Illinois Equal Pay Act, and the Illinois Business Corporation Act, and places new obligations on employers. Specifically, the legislation restricts employers from considering criminal convictions when making hiring and employment decisions, imposes new pay data state reporting requirements, and requires employers to obtain a certification that they are complying with federal and state equal pay laws.
While the pay data reporting requirements take effect January 1, 2023 and the equal pay certificate requirement takes effect March 24, 2024, the restrictions on consideration of job applicants’ criminal records take effect immediately. This post addresses the immediate employer concern of complying with the criminal records portion of the legislation.
Employee criminal records legislation
The legislation amends the Illinois Human Rights Act to restrict employers from considering criminal convictions when making hiring and employment decisions unless an exception applies. If an exception does apply and the employer wants to screen an applicant or take adverse action against an employee based on their conviction record, they must conduct an interactive assessment. The law applies to all employees in Illinois, regardless of the size or location of their employer. The Illinois Department of Human Rights has provided an FAQ here.
Employers may only consider a conviction record if:
- The conviction has a “substantial relationship” to the position; or
- Hiring or retaining the employee would create an “unreasonable risk” to property or to the safety or welfare of others.
A conviction record is “substantially related” to the position if the position will provide the employee an opportunity to engage in the same or a similar criminal offense and the circumstances leading to the offense will arise during employment. For example, there would be a substantial relationship between a conviction for theft and a valet position, but not a substantial relationship between a drug possession conviction and a position stocking shelves.
“Unreasonable risk” is not defined, but the IL Department of Human Rights indicates that an employer must assess the risk that the employee poses in the particular position and determine whether the risk is unreasonable under the circumstances.
When assessing whether the conviction is substantially related and the person poses unreasonable risk, employers must consider all of the following:
- Length of time since the conviction;
- Number of convictions that appear on the conviction record;
- Nature and severity of the conviction and its relationship to the safety and security of others;
- The facts or circumstances surrounding the conviction;
- The employee’s age at the time of the conviction; and
- Rehabilitation efforts.
Note that Illinois already prohibited discrimination based on applicant or employee’s arrest record.
If an employer still wants to use the conviction record to disqualify an applicant or employee after considering the factors above, they are required to engage in an interactive assessment. This requires providing a notice with specific information (including the employer’s reason for disqualifying the applicant or employee) as well as allowing the applicant or employee time to respond. If a response is provided, it must be considered by the employer
If the employer decides that the applicant or employee is disqualified even in part because of the conviction, they are required to provide another written notice with this specific information.
For more information about the interactive process and what is required in the written notices, see the Illinois Arrest and Convictions Law page on the HR Support Center.
Employers should ensure that anyone involved in hiring, or anyone with the power to take adverse action against an employee (likely most or all managers), is familiar with the law and understands both the analysis and the paperwork that it requires.
Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.