Ban-the-box might seem like old news, but these laws are constantly being added and/or updated. It is important for employers to keep up with the laws in all areas in which their employees work. The city of Chicago recently expanded its requirements on how employers may use criminal records in hiring decisions. 

The state of Illinois has had a ban-the-box law for some time; however, updates were made to the law in April of this year. The city of Chicago has also had a law on their books for some time, which contain requirements in addition to those of the state law.

The expanded requirements regarding the considerations of criminal records by employers in Chicago include:

1. The criminal record must have a “substantial relationship” to the position, or the employer believes the person would pose “an unreasonable risk to the property or safety of the company’s workforce, customers, or members of the public.” As in many ban-the-box laws, employers are required to make an “individualized assessment” to include:

• “the length of time since the conviction;
• the number of convictions that appear on the conviction record;
• the nature and severity of the conviction and its relationship to the safety and security of others;
• the facts or circumstances surrounding the conviction;
• the age of the employee at the time of the conviction; and
• evidence of rehabilitation efforts.”

2. Employers who use third parties for their background checks know that under the FCRA requirements, the two step pre-adverse/adverse action process is required before making an adverse decision regarding the subject’s employment. Chicago law now requires employers to follow this process even if they do not use a third party for background checks. This also includes when the subject has provided information regarding their criminal history directly.
    
3. The employer must list the specific item(s) which would be the cause for an adverse action in both the pre-adverse action notification and the adverse action notification. The employer must also include a statement in the final adverse action notification to let the subject know they have a right to file a charge with the Chicago Commission on Human Rights. Employers who work in multiple states in addition to any location(s) in Chicago are also required to add this statement to their final adverse action notification. Considering this requirement, employers should pause to review their reasons and documentation regarding any adverse actions before providing the information to the subject.

As with all laws, there are financial consequences for each infraction. In Chicago, this not only includes fines and penalties; it could also result in licensing issues for the employer, which could have a much higher financial impact on the company.

Source: https://www.mondaq.com/unitedstates/employee-rights-labour-relations/1318858/chicago-enacts-amendments-to-and-expands-requirements-of-its-criminal-history-screening-ordinance