Illinois Bars the Use of Conviction Records - American Society of Employers - Susan Chance

Illinois Bars the Use of Conviction Records

Illinois employment lawThe Illinois Human Rights Act recently had some changes when Illinois Governor J. B. Pritzker signed Senate Bill 1480 on March 23. It is now a civil rights violation “for any employer, employment agency, or labor organization to use a conviction record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges, or conditions of employment.”

The only cases for which an employer may use conviction records are when:

  • there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
  • granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. 

The employer has to take into consideration if the job would put the applicant/employee in a position where they could commit the same offense or one that is similar. The circumstances that led to the “conduct for which the person was convicted” must also be considered in relation to the job. The evaluation process must take into consideration:

  1. “the length of time since 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 six points listed above, the employer makes a decision that disqualifies the subject from consideration, the person must be notified of the “preliminary” decision in writing. The notification must include:

  • The conviction(s) on which the preliminary decision is based, and the reasoning for the disqualification;
  •  A copy of the conviction history report (if any);
  •  An explanation of the subjects right to respond to this notice before the final decision. “The explanation shall inform the 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 employee must be given a minimum of five business days to respond to the notification before a final decision can be made.
  • The employer must consider any information provided by the subject before a final decision can be made.
  • If the final decision is to disqualify the subject, or is to take adverse action because of the conviction record, either in whole or in part, the employer must notify the person in writing of:

o   The disqualifying conviction(s) the decision is based on and the reasoning for the decision;

o   The employers existing procedure for the subject to challenge the decision or to request that the decision be reconsidered, and;

o   The right to file a change with the Department of Human Rights.

While this process is similar to the two-part Pre-Adverse/Adverse action process, the additional requirements for documentation and the extra steps must be followed to help avoid any legal troubles.

 

Sources:

 

https://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=108&GA=101&DocTypeId=SB&DocNum=1480&GAID=15&LegID=118365&SpecSess=&Session

https://www.natlawreview.com/article/illinois-enacts-law-limiting-use-criminal-conviction-records-when-making-employment

https://www.ilga.gov/legislation/BillStatus.asp?DocNum=1480&GAID=15&DocTypeID=SB&LegId=118365&SessionID=108&GA=101

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