On March 23, 2021, Illinois Governor Pritzker signed Senate Bill 1480 (“SB 1480” or “amendment”) into law that amends conviction records protections for applicants and employees under the Illinois Human Rights Act (IHRA). These protections are commonly referred to as “Ban-the-Box” laws. The amendment adds new requirements expanding the prohibitions on employers that perform criminal history checks on their employees. The amendment went into effect immediately upon signing.
IHRA Conviction Record Protection
The IHRA protects a person from being discharged, disciplined, denied employment, or denied promotions, because of a conviction record without notice and an interactive assessment of whether there is a substantial relationship between the conviction and the job.
The requirements apply to any employer employing 1 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding an alleged violation under the IHRA .
Does the IHRA Conviction Record Protection Apply to both Applicants and Employees?
Yes. The IHRA now prohibits the use of conviction records to disqualify a candidate for employment or promotion, or to make other employment-related decisions, except in limited circumstances as follows:
- Job Applicants: A prospective employer can no longer disqualify a job applicant with a conviction record without assessing whether there is a substantial relationship between the conviction and the job, or an unreasonable risk in employing the individual in the particular job. If an employer disqualifies a job applicant with a conviction record, the applicant has the right to provide evidence to challenge the disqualification, which the employer must consider.
- Employees: An employer can no longer use an employee’s conviction record as the basis for employment decisions such as whether to promote, select for training, discipline or discharge the employee without first assessing whether there is a substantial relationship between the conviction record and the job, or an unreasonable risk in allowing the employee to hold a particular job. If an employer disqualifies a job applicant with a conviction record, the applicant has the right to provide evidence to challenge the disqualification, which the employer must consider.
What is a Conviction Record under the IHRA?
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. Examples include guilty pleas or court orders that show a person was convicted of any felonies, misdemeanors or other criminal offenses.
Employers Must Consider 6-Factors before Making an Employment Decision because of Criminal History
Under IHRA, applicants cannot be denied work simply because of their criminal history. Employers may only decline to hire someone based on criminal history if there is a substantial relationship between the applicant’s criminal record and the prospective job, or if they can demonstrate that employing the person creates an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
In doing so, the employer must consider the following factors:
- 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;
- Facts or circumstances surrounding the conviction;
- Age of the employee at the time of the conviction; and
- Evidence of rehabilitation efforts.
If after reviewing the 6-factors above the employer intends to use a conviction record to make an employment decision, the employer must first engage in an interactive assessment prior to making any final decision (see section below).
Does the IHRA Prohibit an Employer from Discharging an Employee based on a Conviction Record?
An employer may discharge an employee based on a conviction record, but only if certain circumstances are present:
First, an employee can be discharged if there is a substantial relationship between the conviction record and the position the employee holds.
Second, an employee can be discharged if their continued employment poses an unreasonable risk to the property or the safety or welfare of the employer and its employees.
Before discharging the employee, an employer must engage in an interactive assessment (see section below). This requires notification to the employee of the preliminary determination and allows the employee to explain the circumstances of the conviction and whether the conviction should be considered in the decision to discharge.
What are the Interactive Assessment Requirements?
An “interactive assessment” is required if, after considering the 6 mitigating factors above, the employer preliminarily decides that the employee’s conviction record disqualifies the employee from employment. Then, the employer must notify the employee of the decision in writing. This notice must contain:
- notice of the disqualifying conviction(s) that are the basis for the preliminary decision;
- the employer’s reasoning for the disqualification;
- a copy of the conviction history report;
- an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final; and
- the notice must also inform the employee that the response may include submission of evidence challenging the accuracy of the conviction record or of rehabilitation.
The employee then has at least five business days to respond where the employee can dispute the accuracy of the relevant conviction record and present evidence for the employer to consider. The employer cannot make a final decision without giving the employee an opportunity to respond to the employer’s preliminary decision.
Can an Employer have a Policy that Bars all Persons with Conviction Records from Employment?
No. An employer may not maintain a policy that bars all persons with a conviction record from employment. An employer is required to take certain steps to determine how the conviction relates to the employment sought or held before they can bar an employee or applicant from employment.
However, the new IHRA amendment acknowledges that some laws prohibit employers from hiring persons with specific conviction records. In those instances, the employer must notify the employee or applicant of their employment disqualification pursuant to the law. The employee then has at least five business days to respond where the employee can dispute the accuracy of the relevant conviction record disqualifying their employment.
Penalties for Non-compliance
Employers that fail to follow the specific factor analysis or fail to follow the process for revoking offers after considering someone’s criminal history may be liable for damages and/or penalties under the IHRA.
- Employers should consider reviewing their hiring process, job postings and applications, to ensure compliance, including the timing of criminal history background checks and the distribution of appropriate notices under the recent amendments to the IHRA.
- Employers should ensure human resources and hiring staff are fully informed about when and how criminal background information may be considered in the hiring process and how information should be considered where a pending arrest or criminal accusation arises during employment.
- Employers working with our Sequoia One PEO are encouraged to reach out to their dedicated HR Business partner with any questions.
- Illinois Senate Bill 1480
- Illinois Human Rights Act
- Illinois Department of Human Rights
- Conviction Record Protection – Frequently Asked Questions
- Sequoia Foreword: California DFEH Releases FAQs on its Ban-the-Box Law
- Sequoia Foreword: New York City Expands its Ban-the-Box Law