Illinois Employers Must Dance a New Tango on Criminal Conviction Records
Illinois lawmakers recently amended the Illinois Human Rights Act to include new rules on how employers may consider criminal convictions in making employment decisions. With this amendment, no Illinois employer may take adverse action in hiring or firing (or anything in between) based upon an applicant's or employee's conviction record unless the employer can show that:
- There is a "substantial relationship" between the criminal offense and the employment sought or held; or
- Employment of the individual would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
The Substantial Relationship Test
What, exactly, do our legislators mean when they say "substantial relationship"? It means "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."
The law provides a handful of factors that employers are required to consider in making this determination:
- How long ago was the conviction?
- How many convictions appear on the individual's record?
- What is the nature and severity of the conviction, and how does it relate to the safety and security of others?
- What are the facts or circumstances surrounding the conviction?
- How old was the individual at the time of the conviction?
- Is there evidence of rehabilitation efforts?
For the most part, this should be nothing new to employers. As we informed you nearly a decade ago, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance recommending that employers consider similar factors when assessing whether to disqualify an individual based on criminal history information. The key distinction between the EEOC's longstanding guidance and the Illinois law is that consideration of the above factors is not merely recommended, but mandatory.
The Interactive Assessment: Notice of Preliminary Decision, Opportunity to Respond, and Final Decision
Step 1: If, after considering the above factors, an employer makes a preliminary decision that the individual's conviction record disqualifies them from employment, the employer "shall notify the employee of this preliminary decision in writing." The notice must contain:
- Identification of the disqualifying conviction(s) that are the basis for the preliminary decision;
- 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 the decision becomes final, including the right to provide evidence challenging the accuracy of the conviction record, or mitigating evidence, such as rehabilitation.
Employers must provide the individual with at least five business days to respond before the employer makes a final decision. Prior to making a final decision, the employer must consider the information submitted by the individual.
Step 2: If the employer's final decision to disqualify or take adverse action is based solely or in part on the individual's conviction record, the employer must send a second notice in writing that includes:
- Identification of the disqualifying conviction(s) that are the basis for the employer's final decision;
- The employer's reasoning for the disqualification;
- Any existing procedure the employer has for the individual to challenge the decision or request reconsideration; and
- The right to file a charge with the Illinois Department of Human Rights.
If the two-step process outlined above sounds familiar, that's because it's similar to (although certainly more onerous than) the adverse action process required under the federal Fair Credit Reporting Act (FCRA) – which, despite its misleading name, applies when an employer makes employment decisions based on any consumer report, including not only credit reports, but also criminal history reports and other reports from third parties.
What Does This Mean for Illinois Employers Going Forward?
Our advice regarding this new Illinois law is similar to our recommended best practices back in 2012 when the EEOC issued its guidance:
- Refrain from having a policy or practice that automatically disqualifies from employment individuals with any criminal record.
- Train managers, Human Resources personnel, and other decisionmakers about this new Illinois law, its requirements, and protocols to be followed.
- Determine the specific criminal offenses that may demonstrate that an individual is not fit to perform a job.
- Provide an opportunity for an individualized assessment of the particular conviction(s) to determine whether they relate to the particular position and/or whether they pose any safety or welfare concerns.
- Study the two-step notice process outlined above and be sure to update any existing pre-adverse and adverse action notices to include all information required under both the FCRA and the new Illinois law.
Of course, Much's Labor & Employment attorneys are available to help develop notice templates customized for your business, to train your decisionmakers regarding these requirements, to assist with the analysis regarding whether to disqualify a particular candidate or employee, and to answer any questions you may have.