by Joseph P. Kelly

Since 2015, Illinois employers have been prohibited from asking a prospective employee about their criminal background in applications or before granting an interview or making a job offer.

Earlier this month, the Illinois legislature passed Senate Bill 1480 which would amend the Illinois Human Rights Act to require Illinois employers—before refusing to hire a job applicant based on criminal history—to determine that (1) there’s a substantial relationship between an applicant’s criminal history and the position sought; or (2) hiring the applicant would lead to an unreasonable risk to property or the safety or welfare of specific individuals or the general public. The law doesn’t define “unreasonable risk.”

Senate Bill 1480 lists six factors for determining whether there’s a substantial relationship between an applicant’s criminal history and the position sought—namely, (1) the length of time since the conviction, (2) the number of convictions in the applicant’s criminal history, (3) the nature and severity of the conviction and its relationship to the safety and security of others, (4) the facts or circumstances the conviction, (5) the age of the applicant at the time of the conviction, and (6) evidence of rehabilitation efforts.

After evaluating those six factors, if an Illinois employer decides that it won’t hire the applicant, the bill requires the employer (1) notify the applicant in writing of its preliminary decision and the basis for same, (2) provide a copy of the criminal history report, if any, and (3) inform the applicant that they have the right to respond to the notice of preliminary decision within five business days before the decision becomes final. Specifically, the employer needs to tell the applicant that their response may include (but isn’t limited to) evidence challenging the criminal history report’s accuracy or evidence of mitigation—e.g. rehabilitation.

If after all of that, the employer still doesn’t want to hire the applicant, it must provide the applicant with a final notice identifying the conviction, explaining the basis of the decision, advising of existing internal procedures for requesting reconsideration, and advising the application of the right file a change of discrimination with the Illinois Department of Human Rights.

Illinois employers are required under the bill to conduct the same analysis and go through the same process when terminating an employee based on criminal history.

While the bill is not law yet, stay tuned—Governor Pritzker is expected to sign the bill into law in the near future. Bottom line–Illinois employers need to be very careful is an applicant or employee’s criminal history factors into an employment decision.

If you have any questions on any of the above, we’re here to help.