Last year, both the state of Illinois and the city of Chicago passed “ban the box” legislation aimed at preventing an employer from rejecting a job applicant merely because he or she admitted to having a criminal history on a job application. These laws went into effect Jan. 1, 2015. Violation of these laws could subject an employer to fines for non-compliance, in addition to providing the basis for potential discrimination-related claims against an employer.
On July 21, 2014, Illinois passed the Job Opportunities for Qualified Applicants Act, 820 ILCS 75/1 et seq. (the “Act”). The Act applies to all employers with over 15 employees and “employment agencies” who procure employees, regardless of the size of the agency. The Act prohibits an employer from inquiring about or considering an applicant’s criminal history until the applicant has been determined qualified for the position and either selected for an interview or given a conditional offer of employment.
Employers that violate the Act are subject to four tiers of civil penalties. A first violation results in a written warning providing notice of the penalties for subsequent violations and giving the employer 30 days to remedy. If the violation is not remedied within the 30-day window or a second violation occurs, the Department of Labor may impose a civil penalty of up to $500. If the violation still isn't remedied after 60 days or a third violation occurs, the department may impose an additional civil penalty of up to $1,500. If the violation isn't remedied within 90 days or yet another violation occurs, the department may impose a civil penalty of up to $1,500 for every 30 days that pass without compliance.
The Act only exempts from its ban the box requirement scenarios where employers:
- Are required to exclude applicants with certain criminal convictions from a specific employment position due to federal or state law.
- Require a standard fidelity bond (or equivalent) for the position, where certain convictions might preclude the obtaining of a bond.
- Are hiring individuals licensed under the Emergency Medical Services Act.
On Nov. 5, 2014, the city of Chicago followed suit and passed Chicago Municipal Ordinance 2-160-054 (the “Ordinance”). The Ordinance applies to all employers, regardless of size, who are required to have a city license for their business (as governed by Title 4 of the Chicago Municipal Code) or who maintain a facility within the geographic boundaries of the city. Like the Act, the Ordinance carries monetary penalties for violations. The Ordinance also provides that violators may be subject to “license discipline” by the city, including suspension or revocation.
The Ordinance also requires employers to consider the following nine factors when determining if a criminal conviction disqualifies an applicant from employment:
- The nature of the specific offense or offenses.
- The nature of the sentence imposed.
- The applicant's number of convictions.
- The length of time that has passed since the applicant's most recent conviction.
- The relationship between the nature of applicant's crimes and the nature of the relevant position.
- The age of the applicant at the time of his most recent conviction.
- Any evidence of rehabilitation, including, but not limited to, whether the applicant has completed a treatment or counseling program or received a certification of relief from disabilities or good conduct.
- The extent to which the applicant has been open, honest, and cooperative in examining his background.
- Any other information relevant to the applicant's suitability for the relevant position.
Finally, the Ordinance requires that whenever an employer makes a decision not to hire an applicant, based in whole or in part on the applicant’s criminal history, the employer shall inform the applicant of this basis at the time he or she is informed of the decision.
These laws pose significant issues for employers regarding application forms, evaluation processes and written notice given to the job applicant. Personnel involved in hiring decisions in the state of Illinois should immediately be advised of these laws. Furthermore, employers should immediately eliminate all questions on job applications that inquire into an applicant’s criminal history. And, employers should send applicants final notice whenever they are excluded because of negative criminal history. Finally, these requirements are in addition to pre-existing federal and state laws forbidding the use of mere arrest information as a basis for an employment decision.