Seyfarth Synopsis: On March 23, 2021, Governor J.B. Pritzker signed into law SB 1480, which includes amendments to the Illinois Human Rights Act prohibiting employment discrimination based on an individual’s conviction history. Under the new law, employers may only take an adverse employment action against an individual based in whole or in part on that individual’s criminal conviction history if the conviction bears a “substantial relationship” to the job at issue or presents an “unreasonable risk” to property or the safety of others. SB 1480 also imposes new notice requirements on employers under such circumstances.
As we previewed here last month, SB 1480 adds “conviction record” to the characteristics protected from employment discrimination in the Illinois Human Rights Act. SB 1480 defines “conviction record” as any “information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law.”
Now that Governor Pritzker has signed SB 1480 into law, Illinois makes it a civil rights violation to use a “conviction record” for employment purposes unless the employer can demonstrate one of the following:
(1) a “substantial relationship between one or more of the previous criminal offenses and the employment sought or held”; or
(2) an “unreasonable risk to property or the safety or welfare of specific individuals or the general public.”
Under the new law, Illinois employers are now required to consider the following factors when evaluating whether such a “substantial relationship” or “unreasonable risk” to property or safety exists:
(1) the length of time since the conviction;
(2) the number of convictions that appear on the conviction record;
(3) the nature and severity of the conviction and its relationship to the safety and security of others;
(4) the facts or circumstances surrounding the conviction;
(5) the age of the applicant or employee at the time of the conviction; and
(6) evidence of rehabilitation efforts.
If, after undertaking this evaluation, the employer makes a preliminary decision that the individual’s conviction record disqualifies him or her from the position, the new law requires the employer to notify the employee or applicant in writing of the preliminary decision. This pre-adverse action notice must contain:
(1) a notice of the disqualifying conviction(s) that form the basis for the preliminary decision and the employer’s reasoning for the disqualification;
(2) a copy of the conviction history report, if any; and
(3) an explanation of the applicant or employee’s right to respond before the employer’s decision becomes final. The explanation must inform the individual that their response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record(s) at issue or evidence of mitigation, such as rehabilitation.
After an employer sends this pre-adverse action notice, the employer must wait five business days before taking a final adverse action. This five business day period is intended to give the applicant or employee an opportunity to respond to the notice and submit information to the employer that may bear on the employer’s ultimate decision whether to take action based on the individual’s conviction record.
If the employer decides to move forward with the adverse action, it must provide the applicant or employee a final written notice, which must again identify the conviction at issue, explain the basis for the decision (whether or not changed from the pre-adverse action notice), advise of any existing internal procedures for requesting reconsideration, and advise the applicant or employee of the right to file a charge of discrimination with the Illinois Department of Human Rights.
Illinois employers should also be aware that the new law applies regardless of whether a third-party background screener is used, in which case employers must also follow the pre-adverse and adverse action requirements of the federal Fair Credit Reporting Act (FCRA). While employers can include the new Illinois requirements in their FCRA notices, it is important that employers understand that the Illinois notice requirements are in addition to, and do not replace, the FCRA’s requirements.
In light of the new law, Illinois employers that use criminal records to screen applicants or employees should carefully review their background screening policies and procedures. Under the new law, the use of criminal convictions to take adverse action will be subject to heightened scrutiny and only permissible where the employer can show either a “substantial relationship” between the conviction(s) and position at issue or the existence of an “unreasonable” property or safety risk based on the conviction(s). To make that showing, Illinois employers must follow the requirements of the new law and conduct an individualized (or “interactive”) assessment of the applicant or employee, based on the six factors described above.