Many employers are familiar with ban-the-box laws that limit when criminal history can be considered in the hiring process. What may be less well known is that some states are expanding these laws beyond criminal background inquiries to address other job requirements, including driver's license requirements.
Recent changes in Illinois and California require employers to carefully evaluate whether driving is truly essential to a position before requiring applicants to hold a valid driver's license or including that requirement in job postings.
In the state of Illinois, the act is called the Illinois Job Opportunities for Qualified Applicants Act. In addition to prohibiting employers from asking about an applicant’s criminal history until after they have been qualified through an interview and then given a conditional offer of employment, the act now also prohibits employers from requiring applicants to have a valid driver's license unless driving is a “requirement of the job and a business necessity.” This includes listing that a valid driver's license is required in job postings where driving is not a requirement of the job. If driving is a requirement or business necessity, employers must list why driving is required.
California’s Fair Employment & Housing Act (FEHA), similar to the Illinois Act, has been in place since January of 2025. This act prohibits employers from listing a valid driver's license requirement in any advertising, job postings, applications, or any other materials. The exception requires employers to “reasonably” anticipate that driving will be an essential function of the job but does not stop there. Employers must also show that not only is driving an essential function, but that the job cannot be “performed by alternative means.”
I am surprised that this does not come up more often, as a situation like this came up when I worked in staffing. Although a candidate did not pass the screening for the driving requirement, the candidate was well qualified for the job. The client site was on a campus that had shuttle buses, and the candidate could also travel to offsite meetings with a co-worker when necessary. That showed that even though it looked like driving was a valid requirement for the job, the reality proved that it was not.
Employers should look at their job descriptions and postings to see if the valid driver's license requirement is listed and then test the theory to ensure that driving is, in fact, a requirement to get the job done.
Employers should also review their background checking requirements for their positions. How employees get to and from work is not a consideration for employers. Also, if you run driving checks on applicants who are not required to drive for the job, what will you do with any negative information that comes back on a check? If you learn that an applicant has DUI’s or has a suspended license but they will never have to get behind the wheel of a vehicle for their job, you could face legal risks for considering that information for an employment decision. Once you see that information, you can’t un-see it.
On the reverse side of that, if you have any employees who do any driving, even if infrequently, for any work purposes, driving checks should be completed. When accidents occur on company time, regardless of the vehicle being an employee’s personal vehicle, a company vehicle, or a rental, if the employee has an accident the other party will most often go after the employer for damages. If the issue goes to court, the court will look at not only what the employer knew about the person’s driving record, but also what they should have known.
It is the responsibility of the employer to ensure that driving is a valid business requirement. If it is not, then employers should not require a valid driver’s license for the position. If it is, then employers must complete their due diligence when it comes to the driving history of all employees who must drive for their position.
Sources: Littler, JDSupra