Illinois Proposes Changes to How Employers Use Certain Criminal History

By now, you are probably aware of the importance of checking up on state and local laws if you obtain background reports on your applicants and employees. We recently covered a court case in Wisconsin that highlights what could happen if an employer considers criminal history when making an employment decision without considering certain state and local laws. So, you probably want to learn about the latest pending revisions to those state and local laws that could have an impact on your background screening strategy. Employers may want to take note of pending legislation in Illinois.

Potential Changes to the Illinois Human Rights Act

On January 13, 2021 the Illinois legislature passed Senate Bill 1480 (SB1480).  This bill is not yet law. But if enacted, it will change how criminal conviction history can be used for employment decisions in Illinois.

The bill amends the Illinois Human Rights Act. Among other things, SB1480 would, unless otherwise authorized by law, make it a “civil rights violation for any employer, employment agency or labor organization to use a conviction record… as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or terms, privileges or conditions of employment (whether “disqualification” or “adverse action”)…”, with some exceptions.  A “conviction record” includes information that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled.

When Conviction Records May Be Considered

You may still consider an applicant or employee’s conviction record for employment decisions, but only if:

• The granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public; or
• There is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held.
  • In order for a “substantial relationship” to exist, there must be a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.

In determining whether one of the two exceptions apply, you must consider:

• The length of time since the conviction;
• The number of convictions that appear on the conviction record;
• The nature and severity of the conviction and its relationship to the safety and security of others;
• The facts or circumstances surrounding the conviction;
• The age of the applicant or employee at the time of the conviction; and
• Evidence of rehabilitation efforts.

Using a Conviction Record for Employment Decisions

If, after considering all mitigating factors, you make a preliminary decision to use an exception, you must provide the applicant or employee with a written notification of the preliminary decision.  The notification must contain:

• Notice of the disqualifying conviction(s) that is/are the basis for the preliminary decision and the reasoning for the disqualification;
• A copy of the conviction history report, if any; and
• An explanation of their right to respond to the notice before the decision becomes final.
  • The explanation must inform them that their response may include submission of evidence challenging the accuracy of the conviction record or evidence of mitigation, such as rehabilitation.

Now you wait. After providing a written notice of the preliminary decision, you must wait at least five (5) business days for the applicant or employee to respond before making a final decision.

If you make a final decision to take adverse action based solely or in part on an applicant or employee’s conviction record, you must notify the applicant or employee in writing of the following:

• Notice of the disqualifying conviction(s) that is/are the basis for the final decision and your reasoning for the disqualification;
• Any existing procedure you have for the applicant or employee to challenge the decision or request reconsideration; and
• The right of the applicant or employee to file a charge with the Illinois Department of Human Rights.

SB1480 is not yet law.  Verified Credentials will continue to monitor this legislation. Watch for updates as they become available.

This bill could have an impact on how criminal conviction records can be used for employment decisions in Illinois.  You may want to discuss this bill with your legal counsel to determine how it could impact you.