Illinois recently amended the Illinois Human Rights Act, with significant impacts to Illinois employers. The amendment, which went into effect on March 23, 2021, provides that it is a civil rights violation for any employer to use a conviction record 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.”

To consider an individual’s criminal conviction, an employer must first determine if there is a substantial relationship between the conviction and the position sought. There are two standards to do so. The first is “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” An employer may also meet a different standard in considering if there is a substantial relation to the record and “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”

If an employer makes a preliminary determination not to hire the individual based on a criminal record, the employer must provide a preliminary notice, or pre-adverse action notice, to the applicant that includes all of the following (1) notice of the disqualifying conviction and the employer’s reasoning for the disqualification, (2) a copy of the conviction report, if any, and (3) an explanation of the employee’s right to respond to the employer’s preliminary decision before it becomes final. The employee must be given at least 5 business days to respond to the notification before the employer may make a final decision.

Employers must engage in an interactive process before taking an adverse job action, and consider information provided by the individual about why the conviction should not be considered. An employer can only decide not to hire the individual based on the criminal record if they conclude that the substantial relationship test or alternative test is passed and after considering the additional information provided by the individual.

If after the interactive process and review of the information the employer decides not to hire the employee, additional written FCRA adverse notices must be provided. They must also contain the following:

• the disqualifying conviction(s),
• any procedure for the challenge or reconsideration of the decision, and,
• the individual’s right to file a charge with the Illinois Department of Human Rights.

Chicago has had the adverse action procedure to include the disqualifying offense in the adverse action letter since 2015. This part of the adverse action process is now statewide, in addition to the other state requirements.

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At Hire Image, we understand ongoing compliance in the face of constantly shifting laws and regulations. Please contact us if you need any assistance in reviewing your policies and procedures. For more information about Ban the Box and other laws that may affect you in your state, please visit our Resource Library.