Background check compliance has been a technical minefield for years. Federal, state and local requirements differ, meaning that multistate employers have a lot to keep track of.
Illinois just planted a new landmine.
Amendments to the Illinois Human Rights Act impose new requirements on employers conducting background checks in Illinois. Governor Pritzker signed the bill into law March 23, 2021, and it takes effect immediately. The new requirements fall into three categories.
First, before taking any adverse action based in whole or in part on criminal history, specific factors must be considered.
Second, the pre-adverse action notice requirements are heightened in Illinois. Before taking an adverse action, specific disclosures are now required, in addition to those mandated by the federal Fair Credit Reporting Act (FCRA).
Third, post-adverse action notice requirements are enhanced too. After taking an adverse action, employers must provide new state law disclosures, along with the FCRA notices.
Here are the new requirements:
1) Factors That Must Be Considered
An employer in Illinois must not take an adverse action based on a criminal record unless either (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 employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Before concluding there is a “substantial relationship,” an employer must consider (1) whether the employment position offers the opportunity for the same or a 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. In making this determination, the following factors must be considered:
(a) the length of time since the conviction;
(b) the number of convictions that appear on the conviction record;
(c) the nature and severity of the conviction and its relationship to the safety and security of others;
(d) the facts or circumstances surrounding the conviction;
(e) the age of the employee at the time of the conviction; and
(f) evidence of rehabilitation efforts.
2) Pre-Adverse Action Requirements
If an employer determines that a conviction is disqualifying, based on the above analysis, the employer must follow the new Illinois pre-adverse action process. That means, in addition to providing the FCRA pre-adverse action notice, the employer must provide a written notification that includes:
(a) notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
(b) a copy of the conviction history report, if any; and
(c) an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final. The explanation must inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification or evidence in mitigation, such as rehabilitation.
The employer must also provide the individual at least five business days to respond to the notification before making any final decision. The employer must consider the information submitted by the employee before making a final decision.
3) Post-Adverse Action Requirements
If an employer then makes a final adverse decision, the employer must notify the employee in writing of the following:
(a) the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
(b) any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
(c) the right to file a charge with the Illinois Department of Human Rights.
Like the new pre-adverse action requirements, these new post-adverse action requirements are in addition to the requirements of the FCRA.
What Employers Should Do
Employers with operations in Illinois should take the following steps:
- Update internal procedures for how to evaluate criminal history information. Decision-makers need to evaluate each of the listed factors before making an adverse decision. It can be helpful to create an internal memo that lists the factors and documents the new process.
- Update pre- and post-adverse template notices to include the newly required information. For multistate employers, it may be easiest to maintain the federal FCRA notices and add supplements for Illinois.