Illinois Human Rights Act – Amended by Senate Bill 1480 (effective 03/23/2021)
Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has been selected for an interview, or if there is no interview, when the candidate has received a conditional offer of employment. In addition, employers are prohibited from inquiring about an employee’s or an applicant’s past worker’s compensation injuries or benefits received.
Employers may not maintain a policy that bars employees/applicants with conviction records, unless a law is in place that prohibits that employer from employing an individual with that specific conviction. In those cases, the employer must notify the applicant/employee of their disqualification pursuant to law.
If taking adverse action on an applicant/employee, the Employer must make an individualized assessment and consider:
(1) The length of time since the conviction;
(2) The number of convictions that appear on the conviction record;
(3) The nature and severity of the conviction and its relationship to the safety and security of others;
(4) The facts or circumstances surrounding the conviction;
(5) The age of the employee at the time of the conviction; and
(6) Evidence of rehabilitation efforts.
Employers must provide specific disclosures in both the pre-adverse and final-adverse stages in addition to the disclosures required by the Fair Credit Reporting Act (FCRA).
Pre-Adverse notification must include:
(1) A notification to the employee of the decision and the reasoning, including the conviction(s) that the employer based its decision on;
(2) A copy of the applicant’s conviction history report, and;
(3) An explanation of the applicant’s rights to respond to the preliminary denial of employment. The explanation must inform the employee that the 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 in mitigation, such as rehabilitation.
Final-Adverse notification must include:
(1) The disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
(2) Any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
(3) The right to file a charge with the Illinois Department of Human Rights.
Employers must wait a minimum of five (5) business days after the pre-adverse action notice before sending out the final notice.