Illinois’ New “Ban the Box” Law

On July 14, 2014, Illinois Governor Quinn signed the “Job Opportunities for Qualified Applicants Act,” which prohibits employers from initially inquiring into or considering a job applicant’s criminal background on a job application.  Illinois joins a number of states, cities and local governments who have enacted “ban the box” laws, so-called because they require the elimination on job applications of the box applicants must check if they have ever been convicted of a crime.  “Ban the box” laws are designed to provide applicants with arrests or convictions more opportunities to be considered based on skills and experience.

Illinois’ statute goes into effect January 1, 2015, and applies to employers with 15 or more employees, as well as employment agencies.  It prohibits employers and employment agencies from inquiring into, considering, or requiring disclosure of the criminal record or criminal history of an applicant.  Employers may inquire about an applicant’s criminal record only after the applicant has been determined to be qualified for the position sought and notified that he or she has been selected for an interview, or if there is no interview, after a conditional offer of employment has been made.

Employers are exempted from the prohibition under three circumstances:  (1) when they are required by federal or state law to exclude applicants with specific types of convictions; (2) when a standard fidelity bond or an equivalent bond is required and one or more specific criminal convictions would disqualify the applicant from obtaining the bond; and (3) when the employer employs workers covered by Illinois’ Emergency Medical Services Systems Act.

There are four levels of civil penalties, ranging from written warnings for the first offense through $1,500 for every 30 days that pass without compliance. At present, there is no statutory private right of action for aggrieved job applicants.

Similar statutes have been enacted in twelve other states and 60 cities, including Kansas City, and are being considered in several more.  The EEOC has also begun scrutinizing whether the use of criminal convictions in the hiring process disparately impacts minorities, and has formulated guidelines about the use of criminal records in the hiring process.

As the “ban the box” movement continues to grow, employers should review all aspects of their recruitment and hiring process, including applications, to determine compliance with these laws.  While inquiries into criminal background may be necessary after a job applicant is interviewed to avoid negligent hiring or other claims, Illinois employers should certainly remove inquiries relating to criminal background from their employment applications before the effective date of the statute.  Those who use employment agencies should also ensure that the agencies comply with the statute in order to avoid potential joint liability.  A review of the entire decision-making process may also be considered in light of the “ban the box” movement.

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