Many Private Sector Employers Limited Regarding Criminal History Inquiries - Illinois Is Now Among the Growing Number of States and Municipalities That Have "Banned the Box"

by Holland & Knight LLP
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HIGHLIGHTS:

  • Statutes that limit inquiry about criminal history during the application and hiring process are known informally as "ban-the-box" laws. This burgeoning trend currently includes several states and localities. In addition, many other states and municipalities impose ban-the-box restrictions on those private sector employers who do business with the state or municipality.
  • Private employers in all states should be mindful of the EEOC's enforcement guidance on the use of criminal history information in the hiring process. When using a third party to conduct a criminal history background check, it is critical to comply with the requirements of the Fair Credit Reporting Act.

Illinois joins the growing number of states and localities across the country that have "ban-the-box" laws. Statutes that limit inquiry about criminal history during the application and hiring process are known informally as "ban-the-box" laws. This burgeoning trend at the state and municipal level currently includes the following states and localities: California; Hawaii; Massachusetts; Minnesota; New York; Pennsylvania; Rhode Island; Baltimore, Maryland; Buffalo, New York; Newark, New Jersey; Philadelphia, Pennsylvania; Rochester, New York; San Francisco, California; and Seattle, Washington. In addition, many other states and municipalities impose ban-the-box restrictions on those private sector employers who do business with the state or municipality.

Private employers who violate ban-the-box laws are subject to penalties that vary depending on the jurisdiction where the violation occurred.

The following is an overview of Illinois' new ban-the-box act that takes effect Jan. 1, 2015.

Illinois Ban-the-Box Law Overview

Illinois Gov. Patrick Quinn signed into law the Illinois Job Opportunities for Qualified Applicants Act on July 19, 2014. The act prohibits a private sector employer (with 15 or more employees in either the current or proceeding calendar year), or an employment agency, from inquiring about or into, considering, or requiring disclosure of an applicant's criminal record or criminal history until the applicant has either been determined qualified for the position and notified that he or she has been selected for an interview by the employer or employment agency; or if there is no interview, until after a conditional offer of employment is extended to the applicant. The limitation on criminal history inquiry in Illinois appears to extend to the use of a background check company (often referred to as a consumer reporting agency).

Employers still may disqualify an applicant based on the applicant's criminal conviction history; they just have to wait to obtain that information until later in the hiring process. Further, employers are permitted to notify applicants in writing at the outset of the hiring process of the "specific offenses that will disqualify an applicant from employment in a particular position due to federal or State law or the employer's policy."

The act's limitations on criminal history inquiry do not apply in the following situations:

  • when state or federal law mandates exclusion of applicants who have certain criminal convictions
  • when a standard fidelity bond or an equivalent bond is required and an applicant's conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond, provided the employer's inquiry must be limited to those specific offenses that would result in disqualification from obtaining the bond
  • when employers employ individuals licensed under the Emergency Medical Services (EMS) Systems Act

Penalties for Violating the Act

The Illinois Department of Labor (IDOL) is vested with the authority to enforce the act through investigation and the issuance of penalties for violations. An employer who is found to have violated the act will be issued a written warning to comply within 30 days. A second violation or a failure to timely remedy the first violation within 30 days may result in a civil penalty up to $500. Subsequent violations are punishable by a penalty of $1,500. In addition, an employer's ongoing failure to remedy the initial violation after 30 days is punishable by a $1,500 penalty every 30 days thereafter until the initial violation is remedied.

The IDOL is authorized to draft regulations to administer the act. Those regulations may fill in some of the gaps in the statute, such as what it means to remedy a violation, how specific the written notice to applicants regarding disqualifying criminal convictions must be to comply with the act, or whether the act applies to current employees applying for other positions within the organization.

Private Employers in All States Should Be Mindful of the EEOC's Enforcement Guidance

Even when an employer is permitted to inquire about the applicant's criminal history, the employer still should be cognizant of the EEOC's Enforcement Guidance on the use of criminal history information in the hiring process. Finally, when using a third party to conduct a criminal history background check, it is critical to comply with the requirements of the Fair Credit Reporting Act.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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