On April 24, 2023, the City of Chicago published an amended ban-the-box ordinance that limits the use of conviction and arrest records by employers. Below is an overview of the changes effective immediately.
Arrest Record Usage Limitations
The legal uses of arrest records to make decisions as an employer have been redefined, and the City’s amendment to Sections 6-10-020 and 6-10-054 of the Municipal Code of Chicago contains the following changes:
- It prohibits the use of arrest records in making employment decisions. The ordinance defines an arrest record as,
“(1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information ordered, expunged, sealed, or impounded under Section 5.2 of the Criminal Identification Act.”
- However, a potential employer is not prohibited from requesting or using sealed felony convictions obtained under applicable state and federal laws that require background checks in evaluating the qualifications and character of an employee or prospective employee.
- A potential employer may still obtain or use “other information” which indicates that a person engaged in the conduct for which that individual was arrested.
Individualized Assessment Requirement
The amendment also contains new guidelines about when a potential employer or employer may use conviction records as a basis making certain employment-related decisions, including a requirement to perform an individualized assessment in certain situations.
Potential employers and employers can only consider conviction records in making employment-related decisions:
- If applicable state or federal law excludes a person with certain conviction(s) from the relevant position.
- If a fidelity bond or equivalent bond is required for the position, and the person’s conviction(s) would disqualify the person from obtaining such bond.
- If there is a substantial relationship between the conviction(s) and the employment sought or held. That is, the position offers the opportunity for the same or a similar offense to occur and the circumstances leading to the conduct for which the applicant was convicted will recur in the employment position.
- If granting or continuing employment would involve an unreasonable risk to property, safety, or the welfare of specific individuals or the general public.
In making the determinations regarding a substantial relationship or unreasonable risk, the potential employer or employer must perform an individualized assessment and 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.
Changes to Pre-Adverse and Adverse Action Notices
Potential employers and employers must also provide a pre-adverse action notice and adverse action notice to any person subject to an adverse employment decision based on the person’s criminal history.
A potential employer or employer who wishes to take adverse employment action, in whole or in part, based on a person’s criminal history must first send a pre-adverse action notice that:
- Give the person at least five business days’ notice before adverse action will be taken;
- Identifies the disqualifying conviction(s);
- Includes a copy of the conviction record; and
- Explains why the conviction(s) disqualify the person from employment.
The potential employer or employer must consider the person’s response to a pre-adverse action notice, if any. If the potential employer or employer wishes to continue with the adverse employment action, then it must send an adverse action notice that identifies the disqualifying convictions, explains why the conviction(s) disqualify the person from employment, and states that the person has the right to file a charge with the Chicago Commission on Human Relations.
These requirements are in addition to other state and federal requirements applicable to pre-adverse and adverse action notices.
Verified maintains a resource library containing sample documents for our clients to use, including sample adverse and pre-adverse notices. Sample forms and documents should not be construed as legal advice, guidance, or counsel. Organizations should consult their own attorney about their compliance responsibilities under the FCRA and applicable state and local law.
