On March 23, 2021, Governor J.B. Pritzker signed into law amendments to the Illinois Human Rights Act (P.A. 101-656) with regard to criminal conviction records of applicants and employees in the state of Illinois. The amendments took effect immediately, so Illinois employers must become well informed about the new restrictions on the ability of an employer to rely on criminal records when making employment decisions. These new amendments unfortunately place many new legal burdens on Illinois employers. The following information contains the highlights of these new amendments which restricts the ability of employers to rely on conviction records in making employment decisions.

Who is covered under the new law?

Any employer, employment agency, or labor organization.

What activities are covered with regard to the use of conviction records?

• Hiring
• Promotion
• Reversal of employment
• Training/apprenticeship
• Discharge/discipline
• Tenure, terms, privileges or conditions of employment (whether “disqualification” or “adverse actions”).

What MUST an employer show under the law to disqualify or take adverse action?

1. There is a substantial relationship between one or more of the previous criminal offenses/convictions (felony, misdemeanor, or other criminal offense, placed on probation, fined, imprisoned, or paroled) AND the employment sought or held;
   
   OR
   
   
2. The granting or the continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individual or the general public.

A “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.

Factors the employer should consider:

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. The evidence of rehabilitation efforts.

What is the employer REQUIRED to do?

Interactive assessment required for disqualifying conviction.

If, after considering the above mitigating factors, the employer makes a Preliminary decision that the employee’s conviction record disqualifies the employee, EMPLOYER SHALL NOTIFY THE EMPLOYEE OF THIS PRELIMINARY DECISION IN WRITING.

The Notice to employee of preliminary decision MUST contain the following:

• Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
• A copy of the conviction history report (criminal background check), if any;
• An explanation of the employee’s right to respond to the employer’s preliminary decision before the decision becomes final. The explanation shall inform the employee that the employee’s response may include, but it 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.
• Notifies the employee that employee shall have at least five business days to respond to the notification provided to the employee before the employer may make a final decision.

What MUST the employer do if the final decision is to disqualify or take adverse action?

WRITTEN NOTICE TO EMPLOYEE OF FINAL DECISION MUST CONTAIN THE FOLLOWING:

• Notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
• Any existing procedure that employer has for the employee to challenge the decision or request reconsideration;
• The right to file a charge with the Illinois Department of Human Rights.

Employers must follow this new law on criminal convictions. Employers must also follow collective bargaining agreements for union employees. There are FAQs posted on the Illinois Department of Human Rights page here. In addition, federal law under the Fair Credit and Protection Act must be followed. 

Questions? Contact Attorney Anthony J. Caruso, Jr., in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com.