“What do you mean I can’t ask an applicant if they have any criminal convictions on my company’s employment application?” “How am I supposed to prescreen them?” These are important questions every business owner wants answered. However, perhaps under the radar, Illinois passed a new law, effective January 1, 2015, that limits an employer’s right to make inquiry into an applicant’s criminal history. The law is known as the “Illinois Job Opportunities for Qualified Applicants Act.”
Having a criminal history is a critical determining factor many employers use in prescreening applicants. It has long been a prohibited act for an employer to ask whether an applicant has ever been arrested. Studies have shown that arrests are more likely to impact the African American workforce than any other demographic so asking about an arrest can be used as a tool to screen out these minorities. Also, merely being arrested has no correlation to an actual conviction of a crime. Therefore an arrest record is strictly off limits in any employment inquiry.
Illinois has now joined a growing number of states that now, under certain conditions, limit an employer’s right to ask, at the prescreening/interview stage, if an applicant has ever been convicted of a crime. No longer will it be legal for employment applications have a box to check off indicating the presence (or absence) of a criminal conviction. This practice is known as “Ban the Box.”
Specifically, with some limited exceptions, covered employers in Illinois must now wait to inquire about criminal history until after the employer has determined that the applicant is qualified for the position and has either notified the applicant that he or she has been selected for an interview or, if there is no interview, has made a conditional offer of employment to the applicant. Employers can notify applicants that certain offenses will disqualify the applicant from employment in a particular position due to state or federal law, or employer policy.
Under the Act, a covered employer is defined as an employer that has at least 15 employees in the current or preceding calendar year.
Additionally, the Act does NOT apply in the following situations:
- Employers who are required to exclude applicants with certain criminal convictions from employment due to federal and Illinois law;
- Employers who hire individuals licensed under the Emergency Medical Services (EMS) Systems Act; and
- If a fidelity bond or an equivalent bond is required and conviction of certain criminal offenses would disqualify the applicant from obtaining such a bond, the employer may inquire whether the applicant has ever been convicted of those offenses prior to determining whether the individual is qualifies for the position.
The Act grants oversight and enforcement to the Illinois Department of Labor which has the authority to issue warnings on the first violation and can also impose civil monetary penalties if the violation is not corrected within a specified period of time.
What are the practical effects of the Act for covered employers?
All covered employers should immediately review their existing employment applications to ensure that they comply with this Ban the Box law. Further, they should not conduct a criminal background check or ask about an applicant’s criminal background prior to scheduling an interview. Job descriptions should be carefully reviewed to see whether the particular job falls in one of the exceptions to the Act.
Criminal status is not a protected class under federal law. However, employers will be liable under state law for misuse of criminal history information about an applicant or employee. In Illinois, it is prohibited to request information about or make an adverse employment decision based on arrest records or convictions that have been impounded, sealed or expunged.
With over 30 years’ experience in advising employees and businesses on labor and employment issues and business concerns, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us through our website at www.boznoslawoffice.com
Featured image of this blog post is Copyright: https://www.pexels.com/search/meeting/