By Pamela Q. Devata and Jennifer L. Mora

Seyfarth Synopsis: Illinois currently has a ban-the-box law restricting employers from asking about criminal history generally until after an interview and the state’s Human Rights Act makes it unlawful for an employer to take action against an applicant or employee based solely on the fact that the person has been arrested for a crime. However, if Governor Pritzker signs SB 1480, which the state legislature sent to him on February 5, 2021, Illinois employers risk an additional civil rights violation if their decision to take action against someone with a conviction does not meet the heightened standard in the bill.

If enacted, SB 1480 would amend the Illinois Human Rights Act to make it a civil rights violation to use a “conviction record” for employment purposes unless the employer can demonstrate one of the following:

(1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held (“substantial relationship” 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); or

(2) the granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.

“Conviction record” means information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.

Similar to the standards set forth in the Equal Employment Opportunity Commission’s 2012 criminal history guidance, in making this determination, Illinois employers will be required to consider the following factors:

(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.

If, after considering the above factors, an employer makes a preliminary decision that the applicant or employee’s conviction record disqualifies the employee, the bill requires the employer to notify the employee or applicant in writing of the preliminary decision. The notice must contain:

(1) notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;

(2) a copy of the conviction history report, if any; and

(3) an explanation of the applicant or employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final. The explanation shall inform the applicant or 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.

The employer must provide the applicant or employee five business days to respond before the employer makes its final decision. If the applicant or employee provides additional information, the employer must consider it.

If the employer still decides to move forward with the adverse action, it must provide the applicant or employee a final notice, which must identify the conviction at issue, explain the basis for the decision, advise of any existing internal procedures for requesting reconsideration, and advise the applicant or employee of the right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).

While not addressed in the bill, any employer that obtains disqualifying conviction history from a third-party background check report must also comply with the pre-adverse and adverse action process set out in the federal Fair Credit Reporting Act (FCRA). While employers can include the Illinois requirements in their FCRA notices (and send one set of letters), it is important to note that the Illinois notices are in addition to, and do not replace, the FCRA’s requirements. As such, employers in Illinois will need to comply with these additional requirements regardless of whether a third-party is utilized.

Reports suggest that the Governor is expected to sign this law, in which case it would be effective on the date of his signature. In the meantime, Illinois employers that use criminal records to screen applicants or employees should consider a review of their criminal record-based screening policies and procedures to ensure compliance with the obligations outlined in the bill.