Effective January 1, 2020, the Illinois Human Rights Act has been amended regarding the use of arrest records by employers.

Unless otherwise authorized by law, it is a civil rights violation under the Illinois Human Rights Act to use arrest records in employment decisions.

• Covered entities: Any employer, employment agency or labor organization as defined under the Act.
• Prohibited conduct: Arrest records can NOT be used 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.

Can Use Felony Convictions:

A state agency, unit of local government or school districts, or private organization (employer) can request or utilize sealed felony conviction information obtained from the Illinois Department of State Police under the Illinois Criminal Identification Act or state or federal laws or regulations that require criminal background checks in evaluation of the qualification and character of an employee or a prospective employee.

Information other than the arrest records CAN be used: Employers and other covered entities CAN obtain or use other information (other than the arrest records) which indicate that a person actually engaged in the conduct for which he or she was arrested.

Based upon the above, Illinois employers should be cautious in the use of criminal information for employment decisions. Any criminal inquiry should comply with Illinois Ban the Box law, which dictates such an inquiry can only be made after an offer of employment or the applicant has been deemed qualified and selected for an interview.

Practical Tip: Companies should advise their criminal background check vendors to NOT provide any arrest record information in their reports.

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