Illinois adds additional restrictions on use of background checks and new EEO requirements

Thompson Coburn LLP

Thompson Coburn LLP

On March 23, 2021, Governor Pritzker signed Senate Bill 1480, amending the Illinois Human Rights Act (“IHRA”). The amendments expand restrictions on the use of criminal background checks and add new employer obligations to submit equal employment opportunity data to the State.

Criminal conviction restrictions for employers

Under the new law, employers are permitted to use conviction records as the basis for an employment decision only if:

  1. There is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
  2. 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.

To determine if one of the exceptions applies, the employer must consider of (1) whether there is “the opportunity for the same or similar offense to occur,” and (2) whether “the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” Consistent to a large degree with Title VII Guidelines, the employer must consider a number of specific factors, including how long ago the conviction took place, the number of convictions, the nature and severity of the conviction and its relationship to the safety and security of others, the facts and circumstances surrounding the conviction, the age of the person at the time of the conviction, and whether there is any evidence of rehabilitation efforts.

Notably, employers who wish to base their decision on a conviction record must first engage with the individual using a process similar to the process used under the Fair Credit Reporting Act. The employer must notify the individual of its preliminary decision in writing, specifying which conviction was the basis for the decision and notifying the individual of their right to respond. This must be accompanied by a copy of the conviction record. The individual then has five business days to respond. If the individual responds, the employer is required to consider the information submitted before making a final decision. If the employer concludes that the individual is disqualified, the employer must, again, provide written notice to the individual stating which conviction was the basis for the decision and any procedure the employer has to challenge the decision or request reconsideration, as well as the individual’s right to file a charge with the Illinois Department of Human Rights.

New EEO obligations for employers

Under SB 1480’s IHRA amendments, Illinois employers who are required to file an EEO-1 report are now required to file a similar annual report with the Illinois Secretary of State, which includes data related to the gender, race, and ethnicity of employees. Furthermore, employers with more than 100 employees must apply for an equal pay registration certificate by submitting an equal pay compliance statement to the Illinois Department of Human Rights. The statement must include a list of all employees, separated by gender, race, and ethnicity, and including the total wages paid to each employee in the past calendar year. Employers have three years from March 23, 2021 to obtain the certificate and will be required to recertify every 2 years.

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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