On March 23, 2021, Illinois Governor J. B. Pritzker signed into law Senate Bill 1480, which amends the Illinois Human Rights Act to now prohibit an employer from using a conviction record as a basis to make an employment decision. Effective immediately, this new law creates significant new requirements and legal risks for employers who utilize background checks.
Employers cannot use a conviction record to take adverse employment actions.
The new law states that an employer, employment agency, or a labor organization are prohibited from using a conviction record as the basis for refusing to hire, segregate, or act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment (whether disqualification or adverse action).
What counts as a “Conviction Record” under the new law?
A “conviction record” is broadly defined as 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 enforcement or military authority. This broad definition could even encompass internet search results as the term is not limited to formal “background checks” such as those from the Illinois State Police or the Federal Bureau of Investigation.
Are there any exceptions to using a conviction record to take an adverse employment action?
Yes, there are some limited exceptions for utilizing a conviction record under the new law, but an employer must now engage in a statutorily required “interactive assessment” with the employee or individual to utilize those exceptions. There are three main exceptions, which include:
- If the employer is otherwise authorized by law to consider a conviction record;
- There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; and
- 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.
When is an employer “authorized by law” to use a conviction record?
Whether an employer is “authorized by law” to utilize a conviction record will be specific for each employer. For instance, public school districts are prohibited from hiring individuals with certain convictions pursuant to the Illinois School Code. Employers should consult with legal counsel to determine if any laws apply and to what extent those laws provide legal protection from claims.
What is a “substantial relationship” between the conviction and the employment?
A “substantial relationship” between a criminal offense and the employment sought or held is defined as a consideration of whether the employment position offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.
What steps must an employer take when considering whether there is a “substantial relationship” or an “unreasonable risk?”
Employers, in making their determinations, must consider:
- the length of time since the conviction;
- the number of convictions that appear on the conviction record;
- the nature and severity of the conviction and its relationship to the safety and security of others;
- the facts or circumstances surrounding the conviction;
- the age of the employee at the time of the conviction; and
- evidence of rehabilitation efforts.
What must an employer do after considering the six factors?
After considering the factors above, an employer must engage in an “interactive assessment” with the employee. If, after considering the factors, the employer makes a preliminary decision that the conviction record disqualifies the employee, the employer is required to notify the employee of the decision in writing, and provide:
- notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
- a copy of the conviction history report, if any; and
- an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final, including that the employee’s 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 of mitigation, such as rehabilitation.
The employee then has up to five (5) business days to respond before the employer can make a final decision. Once the employer considers the information submitted by the employee, if any, it may make a final decision to disqualify or take an adverse action solely or in part because of the employee’s conviction record. Once again, the employer must notify the employee in writing of the following:
- notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
- any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
- the right to file a charge with the Illinois Department of Human Rights.
Thoughts and Tips for Employers:
- It is reasonable to expect that this new law will lead to an increase in litigation, even if an employer decides not to hire an individual for reasons unrelated to a prior conviction.
- The new law very narrowly defines substantial relationship and unreasonable risk, and there is little information available currently as to how a court will address these issues. As a result, the risk of potential exposure for utilizing a conviction record may be high.
- The new “interactive assessment” process will provide would-be-plaintiffs wishing to file a lawsuit ample pre-litigation discovery. We strongly recommend consulting with legal counsel as you navigate the interactive assessment process as the documents created during this process likely will be key evidence in any future lawsuit. Thorough and well-thought-out documentation will help provide a good defense in these cases.
- Some employers may consider moving away from reviewing conviction information. We recommend discussing this decision with legal counsel as there may be other risks.
- As just noted, while it may seem easier to entirely ignore convictions, some employers will need to thread-the-needle to avoid other risks. For example, an individual could file a negligent hiring, retention, or supervision case because the employer should have known that an employee had a particular unfitness for the position as to create a danger of harm to third persons and that the particular unfitness should have been known at the time of the employee’s hiring or retention.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.