New Illinois Law Protects Workers with Criminal Records

Multistate employers should take note, review their adverse action notices

Roy Maurer By Roy Maurer April 1, 2021
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​Illinois Gov. J.B. Pritzker signed the Employee Background Fairness Act into law March 23, prohibiting employers in the state from disqualifying job applicants with conviction records, with some exceptions. The law took effect immediately.

"The law amends the Illinois Human Rights Act to make it a state civil rights violation for employers to use an individual's criminal conviction record in any employment decision, unless there is a substantial relationship between the offense and the individual's employment, or hiring or continuing to employ the individual would pose an unreasonable risk to property or the safety of others," said Schuyler Ferguson, an attorney in Miller Canfield's Detroit office.

The state had already enacted a "ban-the-box" law that bars employers from rejecting job applicants based on arrest records or inquiring about an applicant's criminal history until later stages of the application process.

If an employer determines that there is a relationship between the criminal offense and the job or that there is a safety risk, it must perform an individualized assessment and consider the following mitigating factors before taking any adverse action:

  • The length of time since the conviction.
  • The number of convictions on the record.
  • The nature and severity of the conviction.
  • The facts or circumstances surrounding the conviction.
  • The age of the person at the time of the conviction.
  • Evidence of rehabilitation efforts.

"These mitigating factors mirror those outlined in the EEOC's 2012 Enforcement Guidance—which courts have rejected the EEOC's ability to enforce—that have been adopted in a number of ban-the-box laws around the country," said Kwabena Appenteng, an attorney in the Chicago office of Littler. "If, after considering these mitigating factors, the employer chooses to move forward with the adverse action, the employer must comply with the law's new notice requirements."

The employer must notify the affected individual that the criminal conviction is the basis for disqualification, provide the applicant or employee with a copy of the criminal history report, and give the applicant five days to submit information to convince the employer not to take the adverse action.

"If the individual is unable to challenge the accuracy of the conviction or provide sufficient evidence of mitigation, the employer can then send the individual a notification informing them of the adverse action being taken and proceed with the disqualification," Appenteng said. "Employers that perform criminal history checks using a third-party consumer reporting agency will be very familiar with this process, … [as] the new Illinois requirements incorporate steps that employers are already required to take to comply with the Fair Credit Reporting Act."

He added that while the new state requirements for the pre-adverse action and adverse action notices do not deviate from the Fair Credit Reporting Act, the law adds two new measures that may require employers to amend their adverse action notices. The law requires employers to include "the reasoning for the disqualification" within both pre-adverse action and adverse action notices and notify the affected applicant or employee of their right to file a charge with the Illinois Department of Human Rights.

Any person who has experienced adverse employment consequences because of their conviction record can now file a charge of discrimination with the Illinois Department of Human Rights.

"Penalties under the Illinois Human Rights Act are significant, including uncapped compensatory damages, back pay, front pay, reinstatement, attorneys' fees and costs, and punitive damages," Ferguson said.

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