Illinois Cracks Down on Employers' Consideration of Criminal Histories of Prospective Employees

by K&L Gates LLP

Furthering the trend of governmental skepticism about employers’ blind reliance on information derived from background checks, on July 19, 2014, Illinois Governor Pat Quinn signed into law the “Job Opportunities for Qualified Applicants Act” (the “Act”). Effective January 1, 2015, the Act prohibits employers (defined as a person or private entity with 15 or more employees) and employment agencies from inquiring into or considering the criminal history of a job applicant until: (a) the applicant has been determined to be qualified for the position and notified that he or she has been selected for an interview, or (b) if there is not an interview, until after a conditional offer of employment is made to the applicant. The Illinois General Assembly explained that it believes it is in the public interest to “do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.”

The Act carves out three exceptions to this general prohibition: (1) where the employer is required to exclude applicants with certain criminal convictions due to federal or state law, (2) where a standard fidelity or equivalent bond is required and an applicant’s criminal conviction would disqualify the applicant from obtaining such a bond, and (3) where the employer employs individuals licensed under the Emergency Medical Services Systems Act.

The Illinois Department of Labor has been delegated the power to investigate alleged violations of the Act, which sets forth a series of increasing penalties for noncompliance, starting with a written warning for a first violation and escalating to fines of up to $1,500 for every 30 days that pass without compliance. The Act does not confer a private right of action upon applicants to enforce the Act in their own civil actions.

The use by employers of a job applicant’s criminal history has fallen under increasing scrutiny in recent years by the Equal Employment Opportunity Commission (“EEOC”). Most notably, the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (the “April 2012 Guidance”), which asserted that background check information was a less-than-reliable source of information and positioned use of such information as grounds for discrimination against African-Americans and Hispanics under a disparate-impact theory. In the April 2012 Guidance, the EEOC recommended as a best practice that “employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.” (For an overview of the April 2012 Guidance, click here; and for further information regarding how the EEOC has attempted to enforce its April 2012 Guidance, click here).

In light of the Act, Illinois employers that employ at least fifteen individuals would be well-advised to revise their current policies before 2015 to ensure that questions regarding the criminal history of their applicants are delayed until the applicant is determined to be otherwise qualified for the position. While the Act does not prohibit Illinois employers from inquiring about an applicant’s criminal history once the applicant is deemed qualified and notified that he or she has been selected for an interview, Illinois employers must likewise be cognizant of the Illinois Human Rights Act, which provides that it is a civil rights violation for an employer or employment agency to inquiry into or use the fact of an arrest or criminal history record ordered expunged, sealed, or impounded as a basis to refuse to hire. Nothing in the Act prohibits an employer from notifying applicants that they will ultimately be required to disclose criminal conviction information, but by placing the onus on employers to wait before considering such information, the Act pressures employers to be certain that employment decisions based on criminal background information are supported by job relatedness and business necessity. Employers are also encouraged to determine whether they should implement the “best practices” set forth by the EEOC in the April 2012 Guidance.


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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