Chicago’s newly elected mayor, Brandon Johnson, signed amendments on April 24 to Chicago’s “ban the box” ordinance, which became effective immediately and applies to all Chicago employers. Mirroring updates the Illinois legislature made to the Illinois Human Rights Act in 2021, the amendments require Chicago employers to perform an individualized assessment before basing an adverse employment action on an individual’s criminal history, and impose pre-adverse action and final adverse action notice requirements when such decisions are made.
The new requirements are located in Section 12 of the ordinance (O2023-1329), which amends Section 6-10-054 of the Municipal Code of Chicago.
CHICAGO’S ‘BAN THE BOX’ ORDINANCE
In January 2015, Chicago passed “ban the box” legislation aimed at restricting employers’ use of criminal records in employment screening. This legislation largely replicated the requirements of an Illinois state-wide law called the Job Opportunities for Qualified Applicants Act (JOQAA) enacted at the same time, but with some primary differences.
Notably, the Chicago ordinance (1) applied to Chicago employers of any size, whereas, the Illinois JOQAA applied to employers with 15 or more employees nationwide, (2) required employers to inform applicants of the basis of rejection if the decision was based on the applicant’s criminal history, and (3) imposed steeper penalties for violations.
AMENDMENTS TO THE CHICAGO ORDINANCE TRACK STATE LAW REQUIREMENTS
In March 2021, Illinois amended the Illinois Human Rights Act (IHRA), imposing additional requirements on covered Illinois employers, and supplementing the JOQAA.
The recent amendments to the Chicago ordinance contain the following requirements, which largely track the statewide changes made in 2021:
An employer may not 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, or privileges and conditions of employment unless (1) there is a “substantial relationship” between the individual’s criminal offense(s) and the job sought or held; or (2) the employer believes that the individual poses an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
The law lists six factors an employer must consider when evaluating whether to make a decision based on a conviction record:
- The length of time since conviction
- The number of convictions that appear on the conviction record
- The nature and severity of the conviction and its relationship to the safety and security of others
- The facts or circumstances surrounding the conviction
- The age of the employee at the time of the conviction
- Evidence of rehabilitation efforts
Pre-Adverse Action Notice
If an employer makes a preliminary decision that an individual’s conviction history may result in an adverse employment action, the employer must provide a written pre-adverse action notice to an applicant or employee that includes the following information: (1) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the preliminary decision and the employer’s reasoning for the disqualification; (2) a copy of the conviction record(s), if any; and (3) an explanation of the individual’s right to respond to the decision before it becomes final.
Employers must provide the individual at least five business days to respond to the notification before finalizing their decision. If the individual responds timely, the employer must consider the response.
Final Adverse Action Notice
If—after the five-business-day period elapses—the employer makes a final decision to disqualify or take an adverse action solely or in part because of the individual’s conviction record, the employer must notify the individual of its final decision in writing.
This final adverse action notice must include (1) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the final decision and the employer’s reasoning for the disqualification; (2) any procedure the employer maintains where the individual may challenge the decision; and (3) information regarding the individual’s right to file a charge within the Chicago Commission on Human Relations (CCHR).
RESTRICTIONS ON THE CONSIDERATION OF ARREST RECORDS
Similar to the IHRA, the Chicago amendments also prohibit employers from inquiring about or using arrest records when making employment decisions. Arrest records are defined in the ordinance as “(1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information ordered, expunged, sealed, or impounded under Section 5.2 of the Criminal Identification Act.”
However, like the IHRA, employers may obtain and rely on “other information which indicates that a person actually engaged in the conduct for which the individual was arrested.” Little guidance is provided by either the CCHR or the Illinois Department of Human Rights regarding the types of “other information” an employer can rely on and the circumstances under which such information indicates the person actually engaged in the conduct for which they were arrested. Thus, employers should consider the risks associated with basing an adverse action on an arrest record alone before doing so.
The amendments did not modify existing penalties; however, the CCHR has the authority to assess fines for violations ranging from $100 to $1,000 per offense and any city licensee may be subject to “license discipline” (including suspension and revocation). Every day that a violation continues constitutes a separate and distinct offense.
NEXT STEPS FOR CHICAGO EMPLOYERS
Employers who comply with the IHRA’s 2021 amendments have few updates to make to their pre- and post-hire background check processes and procedures. However, they should promptly update their final adverse action notices to include a provision that notifies Chicago-based applicants and employees of their right to file a charge with the CCHR. They should also ensure that their individualized assessment and pre-adverse action requirements align with state and local requirements.
Chicago employers with less than 15 employees, who were not previously subject to the IHRA’s more stringent requirements, should review and update their background check and other policies regarding their consideration of criminal records.