New Illinois Laws Change Hiring Practices

​In Illinois, applicants with criminal records will have a better chance of obtaining health care jobs and employers will soon be prohibited from asking job candidates about their salary history under two new state laws.

Gov. J.B. Pritzker signed an amendment on July 31 to the Health Care Worker Background Check Act, which provides an expedited process for applicants with arrest or conviction records to seek a waiver to work in the health care field.

"Previously, the process of conducting a background check would only begin once the prospective health care employer made a conditional offer of employment," explained Jillian Molz, an attorney with Gould & Ratner in Chicago. "If the background check revealed a record of conviction for certain offenses, then the conditional offer could be terminated unless the applicant obtained a statutory waiver."

The new law, which went into effect immediately, allows applicants with criminal records working with job training programs, drug treatment centers or pro bono legal service organizations to obtain waivers before receiving the job offer.

"By getting these background checks done upfront, we provide a greater level of transparency between applicants and employers, avoid wait times and help Illinoisans with criminal records have a better shot at getting a job," said Sen. Elgie R. Sims Jr., D-Chicago.

The law also streamlines the occupational licensing process for the more than 4 million state residents with arrest or conviction records—40 percent of the state's working population.

Illinois Joins States That Ban Salary History Inquiries

Pritzker signed another bill to bar employers from asking job applicants about their salary history as part of the hiring process.

The legislation amends the state's Equal Pay Act, creates penalties for violations and allows job applicants to seek compensatory and punitive damages.

"It's no longer acceptable to wring quality work out of capable women at a discounted rate," Pritzker said, framing the measure as a step in reducing the disparity in pay between men and women.

"The gender pay gap is the result of many factors, including occupational segregation, bias against working mothers, and direct pay discrimination," said Deborah J. Vagins, senior vice president of public policy and research at the American Association of University Women in Washington, D.C. "Employer practices such as using prior salary history in setting current pay and prohibiting employees from discussing their wages compound the problem."

[SHRM members-only toolkit: Managing Pay Equity]

The law is set to take effect Sept. 29 and includes other pay equity provisions that will require HR to adjust hiring practices, said Franklin Wolf, an attorney in the Chicago office of Fisher Phillips.

"You should immediately amend your employment applications to eliminate questions about pay history," Wolf said. "You also should update your procedures for conducting reference and background checks to ensure they do not request salary history. Additionally, all HR personnel, as well as any other employees involved in the interviewing and hiring process, must be educated and trained on the new law to avoid violations."

The law does permit employers to discuss salary expectations with candidates and explicitly states that it would not be a violation if the applicant voluntarily discloses their previous pay. "You should document in your hiring notes that the applicant disclosed such information of their own accord, perhaps even documenting the specific question you posed that led to the disclosure in order to prove that it was truly voluntary," Wolf said. "In such situations, you may even want to ensure that you have internal documentation prepared that shows the method you used to derive the salary level you end up offering to the candidate, preemptively building a case to show that you did not use the voluntarily disclosed data as part of your process."