Illinois Enacts Employee Background Fairness Act

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Saul Ewing Arnstein & Lehr LLP

On March 23, 2021, Illinois Governor J.B. Pritzker signed into law the Employee Background Fairness Act, which bans the use of criminal convictions in employment actions in Illinois, with limited exceptions.

The law, which we reported upon here after it was passed by the legislature, makes it a civil rights violation to use a conviction record in any employment-related decision, unless (1) there is a “substantial relationship” between the criminal offense and the position, or (2) it would involve an “unreasonable risk” to property or the safety of a specific individual or the general public.

Employers who wish to take an adverse action must engage in an “interactive” process with the employee to understand the context behind the conviction record and must also navigate the law’s notice provision by advising the employee both before and after the final decision is made, of his or her rights.

Notably, the Act does not prohibit employers from using conviction records where required to do so by law.

In light of the new restrictions, many employers may opt to forego criminal background checks altogether, as their utility is greatly limited under the Act. Once an employer knows that employee has a conviction record, the employer would be hard-pressed to deny an applicant or rescind a job offer without inviting a discrimination claim. This is especially true in light of the Act’s notice requirement, which obligates employers to advise employees and applicants of their right to file a charge of discrimination at the Illinois Department of Human Rights (IDHR). It may be less onerous to cease criminal history checks altogether, unless operating in a particularly sensitive industry that requires such measures. As with all new laws, we are sure to see additional guidance once regulations are implemented and/or the statute makes its way into the court system.

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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