September 16, 2014

A new Illinois law prohibits employers from considering — or even asking about — a job applicant’s criminal convictions until after the employer determines that the applicant is qualified for the position and either notifies the applicant of an impending interview or makes a conditional offer of employment.

The new law, entitled the “Job Opportunities for Qualified Applicants Act” contains certain exceptions to this new rule, some of which are described below. All Illinois employers, however, should note that the previous state law, which allowed employers to ask an applicant about criminal convictions, but not about arrests, is no longer valid.

(It is also important to recognize that Illinois is not the first state to impose such prohibitions. While our discussion will focus on the new Illinois law, employers that hire employees in other states should be sure to familiarize themselves with relevant laws in those jurisdictions.) 

The Act became effective on July 19, 2014, and applies to any employer that is considering an applicant for a position. The Act defines an “employer” as any person or private entity with at least 15 employees in the current or preceding year. Any agent of such a person or entity is also considered to be an employer. The Act defines an “applicant” as any person pursuing employment with an employer or through an employment agency.

The Act contains some notable exceptions. For example, if another law requires an employer to exclude certain applicants with certain criminal convictions from employment, then the employer is still allowed to ask applicants about those types of criminal convictions. Also, if a standard fidelity bond or its equivalent is required as a condition of the job, and conviction of certain criminal defenses would disqualify the applicant from obtaining such a bond, then the employer can ask whether the applicant has even been convicted of those offenses before deciding if the applicant is qualified for the job. Lastly, if the employer hires individuals licensed under the Emergency Medical Services Systems Act, then the employer may still ask about criminal convictions at the earliest stage of an employment application.

Notably, the Act also allows employers to notify applicants in writing of specific offenses that will disqualify them from employment in a particular position due to federal or state law or based upon the employer’s own policy.

The Illinois Department of Labor will enforce the Act, and may impose the following civil penalties: 

  • A written warning for the first offense
  • A $500 civil penalty for the second offense or if the first offense is not corrected within 30 days
  • A civil penalty of $1,500 for the third offense or if the first offense is not corrected within 60 days
  • An additional civil penalty of up to $1,500 for each subsequent violation; or, if the first violation is not remedied within 90 days, then the Department may impose additional penalties of up to $1,500 for every 30 days that pass without the employer correcting the violation

Illinois employers should check their employment application forms to ensure that they avoid asking about criminal convictions, unless the employer is in an industry prohibiting employment of people with certain disqualifying convictions, such as healthcare and financial services. Each person responsible for interviewing applicants should be told that they should not ask about criminal convictions during the initial interviews, with the same industry/disqualifying convictions exception.

If your company is prohibited by law from employing people with certain criminal convictions, then you may want to consider revising your application form to list the specific disqualifying crimes.

Illinois employers should take particular care not to conduct a criminal background check or even ask an applicant about his or her criminal background before scheduling an interview (or before making a conditional offer of employment, if the applicant will not be interviewed before then). And remember: the prohibition against Illinois employers asking about an applicant’s arrest record remains the law.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.