Effective March 23, 2021, employers are prohibited from using criminal conviction record in making employment decisions including hiring, segregating, recruiting, promoting, renewing employment, selecting for training, discharging, disciplining, or granting tenure.
The newly amended Illinois Human Rights Act (“IHRA”) covers all Illinois employers and concerns all employment related decisions impacting any individual within Illinois. It would be a civil rights violation if a business denied a person employment only based on a criminal conviction record.
A “conviction record” means 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.
The IHRA allows for two (2) exceptions to this new law: 1) if there is a substantial relationship between the previous criminal offense and the job position sought or held; and 2) if there would be an unreasonable risk to property or to the safety or welfare of other in granting or continuing an individual’s employment.
There are a set of factors that each employer must consider when contemplating the two exceptions:
- Duration of time that has passed since the conviction;
- The number of convictions on the record;
- The nature and severity of the conviction and its relationship to the safety and security of others;
- The facts and circumstances surrounding the conviction;
- The age of the individual at the time of the conviction; and
- Any evidence of rehabilitation efforts.
An employer must not only contemplate these facts, but she must send a Primary Decision Notice to the individual that includes a notice of the conviction(s) that the employer is considering, a copy of the conviction record and an explanation of the employer’s reason for disqualification. The individual is then allowed at least five (5) business days in order to provide evidence to refute the accuracy of the conviction or otherwise address the employer’s concerns. If the employer still decides to take adverse action, it must then send a Final Decision Notice to the individual including notice of the conviction that deemed that individual disqualified, the reasoning and identifying any procedures the employer has in place to challenge the adverse decision. The Final Decision Notice must also include notice of the individual’s right to file a discrimination charge with the Illinois Department of Human Rights.
This new law does not impact the “Ban the Box” law, which disallows employers from asking about criminal convictions prior to a job offer or before a candidate is selected for an interview. Additionally, all employers must still comply with all applicable state and federal laws, including the federal Fair Credit Reporting Act, the Illinois Employee Privacy Act and relevant anti-discrimination laws.
The attorneys at Reno & Zahm LLP will continue to monitor the impact this new law has on employers in Illinois. Please contact us with any questions.