Governor Quinn recently signed the Job Opportunities for Qualified Applicants Act, AKA “Ban the Box,” which prohibits many employers from requiring that applicants list their criminal history on job applications. The law requires application forms to be amended to ensure legal compliance. Employers are also forbidden to conduct background checks on prospective employees until a position is offered to an applicant. Applicants cannot be asked to disclose criminal history until the interview phase. If there is no interview, employers may not inquire about criminal records until there is a conditional offer of employment to the applicant. Hiring processes should also be revisited and revised as neededo) that have passed “ban the box” legislation; the name is based on the box found on most employment applications that asks applicants whether they have ever been convicted of a crime.
The Job Opportunities for Qualified Applicants Act, which takes effect January 1, 2015, prohibits private employers with 15 or more employees, as well as all employment agencies, from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and they have notified the applicant of his or her selection for an interview or – if there is no interview – until a conditional job offer has been made. These restrictions do not apply if:
(1) Employers must exclude applicants with certain criminal convictions from an applied-for position under federal or Illinois law (in which case the employer may notify applicants in writing of the specific disqualifying offenses);
(2) A standard fidelity or equivalent bond is required, and an applicant’s conviction of one or more specific offenses would disqualify him or her from obtaining such a bond (in which case the employer may ask the applicant if he or she has been convicted of any such offenses); or
(3) The position is one that requires licensing under the Emergency Medical Services Systems Act.
The Illinois Department of Labor is charged with investigating any alleged violations and imposing civil penalties ranging from a written warning for a first violation and up to $1,500 for a repeated violation or a failure to remedy an earlier violation. The law does not allow applicants themselves to sue.
The Illinois law reemphasizes the fact that multi-state employers should remove criminal history questions from their job applications, especially if they use nationwide Internet-based job postings to reach applicants. In addition, every employer should work closely with its employment counsel to make sure it complies with these new and developing laws in every jurisdiction where they recruit. Employers should also keep in mind that certain states have additional laws that regulate this area, such as Illinois’ Human Rights Act, which prohibits using arrest-record information or expunged criminal convictions when making employment decisions.