On March 23, 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 1480, the Employee Background Fairness Act. This impacts Illinois employers because it imposes new obligations under the Illinois Human Rights Act (IHRA) on the way they can use criminal convictions to assess employment eligibility for applicants and current employees. It also imposes new reporting and registration requirements concerning employee demographics under the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA) and creates new whistleblower anti-retaliation protections under the IEPA.
The amendments take effect immediately. This blog post will focus on the amendments to the IHRA, and a subsequent blog post will focus on the amendment to the IBCA and the IEPA.
The IHRA is amended to make it a civil rights violation for an employer, employment agency or labor organization (collectively “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, subject to the exception below. “Conviction record” is defined as “information indicating that a person has been convicted of a felony, misdemeanor, or other criminal offence, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”
An employer is permitted to deny employment or take an adverse action based on an individual’s conviction record if there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 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. The IHRA defines “substantial relationship” to mean “a consideration of whether the employment positon 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 position sought or held.”
To determine whether a “substantial relationship” exists, the amendments to the IHRA require employers to consider the following factors in evaluating the “substantial relationship” or risk to property or safety factors noted above:
- 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.
The amendments to the IHRA require employers to engage in an “interactive assessment” for disqualifying an applicant or employee. Specifically, the IHRA provides that after considering the above factors, if the employer initially believes that the individual’s conviction record disqualifies the person from the position sought or currently held, the employer is required to notify the individual of this preliminary decision in writing.
The written notification must contain:
- 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.
The notice must also 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 of mitigation, such as rehabilitation.
Before the employer can render a final decision, it must give the individual five business days from the date the employee receives the required written notification to respond. While the amendments do not, however, define or give examples of what “evidence” the employer is required to consider and/or accept, the amendments do provide that the employer “shall consider information submitted by the employee before making a final decision.” If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the individual’s conviction record, the employer is required to notify the individual in writing of the following:
- notice of the disqualifying conviction or conviction(s) that are the basis for the final decision and the employer’s reasoning of 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.
Notably, an employer who uses a third-party screening company to obtain information about an individual’s credit history, criminal background, references, or other personal information must also follow the procedures set out in the Fair Credit Reporting Act (FCRA). The requirements under FCRA are in addition to what is now required under the IHRA should an employer seek to use an individual’s conviction records as a basis for disqualification.
Because the amendments to the IHRA described above go into effect immediately, Illinois employers currently onboarding applicants who may have criminal convictions that could disqualify, or those that learn/know of criminal convictions that the employer may seek to use as a basis to discipline and/or terminate, must quickly familiarize themselves with the new obligations under the IHRA to avoid a charge of discrimination.
If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.