Background Check Questions: Illinois Joins Ban-the-Box States; New Jersey May Be Next



Criminal background questions on employment applications will no longer be permitted in Illinois, effective January 1, 2015. On July 19, Governor Quinn signed the Job Opportunities for Qualified Applicants Act, making Illinois the fifth state to prohibit private employers from asking criminal history questions at the initial application stage.

Illinois joins Hawaii, Massachusetts, Minnesota and Rhode Island in banning the box statewide for private employers. As discussed below, New Jersey may be about to follow.

Several cities have also passed ban-the-box laws that apply to private employers, including Philadelphia, Seattle, Newark, San Francisco, Baltimore and Rochester, NY.

Ban-the-box laws prohibit employers from asking applicants about their criminal history until after the applicants clear an initial round of qualification screening. The Illinois law covers private employers with 15 or more employees and covers employment agencies. Illinois already had imposed these restrictions on public employers.

The law prohibits questions about criminal background until after the applicant has been determined to be qualified for the position and has been notified that he or she has been selected for an interview. For jobs that do not require an interview, criminal background questions cannot be asked until after a conditional offer is made.

The Illinois law does not apply to positions where federal or state law prohibits employment of individuals with certain convictions. It also does not apply to positions where a bond is required if specified criminal convictions would disqualify the applicant from obtaining the bond. The law also does not apply to employers licensed under the Emergency Medical Services (EMS) Systems Act.

All other private employers and agencies must comply, which means they must remove criminal history questions from their applications. Penalties for noncompliance start with a written warning and progress through a series of increasing fines ($500, $1,000, $1,500) for multiple offenses or for past offenses not quickly cured. The law does not provide applicants with the right to file a civil lawsuit. All enforcement activity must be brought by the Illinois Department of Labor, which would be represented by the State Attorney General.

New Jersey

The New Jersey state Senate and Assembly both passed a ban-the-box law for private employers on June 26, and the bill now awaits signature by Gov. Christie.

The New Jersey Opportunity to Compete Act would apply to private employers with 15 or more employees and to employment agencies. It would prohibit questions about criminal history until the employer has conducted a first interview, whether in person or by any other means. The law does not define what constitutes an interview and does not address what happens if no interview is required for the position. Administrative guidance by the Commissioner of Labor and Workforce Development may be issued at some point to address these scenarios.

Like the Illinois law, the New Jersey law would not apply to positions where federal or state law prohibits employment of individuals with certain convictions. The New Jersey law also contains additional exceptions and does not apply to positions in law enforcement, corrections, the judiciary, homeland security or emergency management. The New Jersey law also contains an exception that allows employers to inquire further about criminal history if the applicant voluntarily discloses a criminal record during the initial application process.

The New Jersey law sets forth a series of increasing monetary penalties for noncompliance, in amounts not to exceed $1,000 for a first violation, $5,000 for a second and $10,000 for a third. There is no private right to bring a civil action, and any enforcement action must be brought by the Commissioner of Labor and Workforce Development.

The final version of the New Jersey bill has been sent to Gov. Christie for signature. The governor has 45 days to sign or veto the bill or, if he takes no action, it would become law without his signature after 45 days. The law would take effect July 1, 2015.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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