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Employers that are either located in Illinois or hiring Illinois residents must abide by the Federal FCRA, and applicable Illinois state employment laws.
This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Illinois state laws. This page also contains steps an end-user must take to stay in compliance with Illinois state laws.
Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.
The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.
For more detailed information on Illinois state laws, please consult your legal counsel.
Info Cubic Ninja's summary
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.
(a) It shall be unlawful for any employer to inquire, in a written application or in any other manner, of any prospective employee or of the prospective employee’s previous employers, whether that prospective employee has ever filed a claim for benefits under the Workers’ Compensation Act or Workers’ Occupational Diseases Act or received benefits under these Acts.
(b)(1) Except as provided in this subsection, it shall be unlawful for any employer or prospective employer to:
(A) request, require, or coerce any employee or prospective employee to provide a user name and password or any password or other related account information in order to gain access to the employee’s or prospective employee’s personal online account or to demand access in any manner to an employee’s or prospective employee’s personal online account;
(B) request, require, or coerce an employee or applicant to authenticate or access a personal online account in the presence of the employer;
(C) require or coerce an employee or applicant to invite the employer to join a group affiliated with any personal online account of the employee or applicant;
(D) require or coerce an employee or applicant to join an online account established by the employer or add the employer or an employment agency to the employee’s or applicant’s list of contacts that enable the contacts to access the employee or applicant’s personal online account;
(E) discharge, discipline, discriminate against, retaliate against, or otherwise penalize an employee for (i) refusing or declining to provide the employer with a user name and password, password, or any other authentication means for accessing his or her personal online account, (ii) refusing or declining to authenticate or access a personal online account in the presence of the employer, (iii) refusing to invite the employer to join a group affiliated with any personal online account of the employee, (iv) refusing to join an online account established by the employer, or (v) filing or causing to be filed any complaint, whether orally or in writing, with a public or private body or court concerning the employer’s violation of this subsection; or
(F) fail or refuse to hire an applicant as a result of his or her refusal to (i) provide the employer with a user name and password, password, or any other authentication means for accessing a personal online account, (ii) authenticate or access a personal online account in the presence of the employer, or (iii) invite the employer to join a group affiliated with a personal online account of the applicant.
(2) Nothing in this subsection shall limit an employer’s right to:
(A) promulgate and maintain lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use; or
(B) monitor usage of the employer’s electronic equipment and the employer’s electronic mail without requesting or using any employee or prospective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s personal online account.
(3) Nothing in this subsection shall prohibit an employer from:
(A) obtaining about a prospective employee or an employee information that is in the public domain or that is otherwise obtained in compliance with this amendatory Act of the 97th General Assembly;
(B) complying with State and federal laws, rules, and regulations and the rules of self-regulatory organizations created pursuant to federal or State law when applicable;
(C) requesting or requiring an employee or applicant to share specific content that has been reported to the employer, without requesting or requiring an employee or applicant to provide a user name and password, password, or other means of authentication that provides access to an employee’s or applicant’s personal online account, for the purpose of:
(i) ensuring compliance with applicable laws or regulatory requirements;
(ii) investigating an allegation, based on receipt of specific information, of the unauthorized transfer of an employer’s proprietary or confidential information or financial data to an employee or applicant’s personal account;
(iii) investigating an allegation, based on receipt of specific information, of a violation of applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct;
(iv) prohibiting an employee from using a personal online account for business purposes; or
(v) prohibiting an employee or applicant from accessing or operating a personal online account during business hours, while on business property, while using an electronic communication device supplied by, or paid for by, the employer, or while using the employer’s network or resources, to the extent permissible under applicable laws.
(4) If an employer inadvertently receives the username, password, or any other information that would enable the employer to gain access to the employee’s or potential employee’s personal online account through the use of an otherwise lawful technology that monitors the employer’s network or employer-provided devices for network security or data confidentiality purposes, then the employer is not liable for having that information, unless the employer:
(A) uses that information, or enables a third party to use that information, to access the employee or potential employee’s personal online account; or
(B) after the employer becomes aware that such information was received, does not delete the information as soon as is reasonably practicable, unless that information is being retained by the employer in connection with an ongoing investigation of an actual or suspected breach of computer, network, or data security. Where an employer knows or, through reasonable efforts, should be aware that its network monitoring technology is likely to inadvertently to receive such information, the employer shall make reasonable efforts to secure that information.
(5) Nothing in this subsection shall prohibit or restrict an employer from complying with a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications as required under Illinois insurance laws or federal law or by a self-regulatory organization as defined in Section 3(A)(26) of the Securities Exchange Act of 1934, 15 U.S.C. 78(A)(26) provided that the password, account information, or access sought by the employer only relates to an online account that:
(A) an employer supplies or pays; or
(B) an employee creates or maintains on behalf of or under direction of an employer in connection with that employee’s employment.
(6) For the purposes of this subsection:
(A) “Social networking website” means an Internet-based service that allows individuals to:
(i) construct a public or semi-public profile within a bounded system, created by the service;
(ii) create a list of other users with whom they share a connection within the system; and
(iii) view and navigate their list of connections and those made by others within the system.
“Social networking website” does not include electronic mail.
(B) “Personal online account” means an online account, that is used by a person primarily for personal purposes. “Personal online account” does not include an account created, maintained, used, or accessed by a person for a business purpose of the person’s employer or prospective employer.
Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts. Employers are also prohibited from requiring an employee add an employee, supervisor, or administrator, to the list of contacts associated with the employee’s social media accounts.
Employers may not inquire into or use criminal history information that has been expunged, sealed, or impounded when making a hiring decision.
(A) Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed or impounded under Section 5.2 of the Criminal Identification Act as a basis to refuse to hire, to segregate, or to 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. This Section does not prohibit a State agency, unit of local government or school district, or private organization from requesting or utilizing sealed felony conviction information obtained from the Department of State Police under the provisions of Section 3 of the Criminal Identification Act or under other State or federal laws or regulations that require criminal background checks in evaluating the qualifications and character of an employee or a prospective employee.
(B) The prohibition against the use of the fact of an arrest contained in this Section shall not be construed to prohibit an employer, employment agency, or labor organization from obtaining or using other information which indicates that a person actually engaged in the conduct for which he or she was arrested.
Employment applications must state the applicant does not need to disclose any records that have been expunged including arrest or conviction records.
(a) Except with respect to law enforcement agencies, the Department of Corrections, State’s Attorneys, or other prosecutors, and as provided in Section 13 of this Act, an expunged or sealed record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration. Applications for employment must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest. The entity authorized to grant a license, certification, or registration shall include in an application for licensure, certification, or registration specific language stating that the applicant is not obligated to disclose sealed or expunged records of a conviction or arrest; however, if the inclusion of that language in an application for licensure, certification, or registration is not practical, the entity shall publish on its website instructions specifying that applicants are not obligated to disclose sealed or expunged records of a conviction or arrest. Employers may not ask if an applicant has had records expunged or sealed.
(b) A person whose records have been sealed or expunged is not entitled to remission of any fines, costs, or other money paid as a consequence of the sealing or expungement. This amendatory Act of the 93rd General Assembly does not affect the right of the victim of a crime to prosecute or defend a civil action for damages. Persons engaged in civil litigation involving criminal records that have been sealed may petition the court to open the records for the limited purpose of using them in the course of litigation.
Employers may not inquire (or obtain through a consumer reporting agency) about an employee’s or an applicant’s credit history. Employers may not make an adverse employment decision because of an individual’s credit history.
An employer may only obtain an individual’s credit history if there is an established bona fide occupational requirement for the particular position. These exceptions exist when:
(1) State or federal law requires bonding or other security covering an individual holding the position.
(2) The duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more.
(3) The duties of the position include signatory power over business assets of $100 or more per transaction.
(4) The position is a managerial position which involves setting the direction or control of the business.
(5) The position involves access to personal or confidential information, financial information, trade secrets, or State or national security information.
(6) The position meets criteria in administrative rules, if any, that the U.S. Department of Labor or the Illinois Department of Labor has promulgated to establish the circumstances in which a credit history is a bona fide occupational requirement.
(7) The employee’s or applicant’s credit history is otherwise required by or exempt under federal or State law.
(a) Except as provided in this Section, an employer shall
not do any of the following:
(1) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual’s credit history or credit report.
(2) Inquire about an applicant’s or employee’s credit history.
(3) Order or obtain an applicant’s or employee’s credit report from a consumer reporting agency. (b) The prohibition in subsection (a) of this Section does not prevent an inquiry or employment action if a satisfactory credit history is an established bona fide occupational requirement of a particular position or a particular group of an employer’s employees. A satisfactory credit history is not a bona fide occupational requirement unless at least one of the following circumstances is present:
The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.
Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.
The purpose of the FCRA is to help protect employers, employees, and potential job candidates.
This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.
All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.
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.
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 deemed qualified for the position and has completed a first interview.
Williams v. Amazon, Inc
Plaintiff claims he was denied employment at an Amazon based on an incorrect background screening. This screening was also not disclosed to him.
Certification sought. Williams is lead plaintiff in this class action lawsuit.
Employers must ensure that they adhere to strict procedures regarding disclosure and authorization.
Robrinzine v. Big Lots Stores Inc.
Plaintiff claims that Big Lots Stores only obtain consent and authorization after a background screening has been procured on the applicant.
Settlement. Robrinzine was the lead plaintiff in this class action lawsuit.
Employers must ensure that they adhere to strict procedures regarding disclosure and authorization. Authorization must be obtained before initiating a background screening.
Rodriguez v. Sprint/United Mgmt Co.
Plaintiff claims that the disclosure and authorization form that he signed did not consist solely of the disclosure and included language amounting to a liability waiver as well as a blanket release.
Settlement. Rodriguez was the lead plaintiff in this class action lawsuit.
Employers must ensure that their disclosure form consists solely of the disclosure as required by the FCRA. No extraneous information such as language amounting to a liability waiver is allowed to be present on the disclosure form.
Gehrig v. Volt Information Services
Plaintiff claims that Volt did not follow proper adverse action procedure resulting in a violation of the FCRA. Plaintiff claims Volt did not provide notice, the summary of rights, a copy of the report, or the ability to correct any inaccuracies within the report.
Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.