On July 21, 2014, Illinois Governor Pat Quinn signed the Job Opportunities and Qualified Applicants Act (Act) limiting the ability of private employers to inquire about and conduct criminal background checks on job applicants.
The Act, which is effective as of January 1, 2015, prohibits most private employers in Illinois from inquiring about and checking the criminal background of an applicant until the applicant has reached the interview phase of the hiring process. If the hiring process does not require an interview, an inquiry or criminal background check cannot be performed until a conditional offer of employment is extended to the applicant.
The Act follows in the wake of Governor Quinn’s October 3, 2013 Administrative Order 1. Order 1 requires state employers to remove questions about criminal history from employment applications, utilize an Authorization for Release form when a criminal background check is conducted, and establish an evaluation process that only excludes an applicant based on criminal history when such exclusion is job related and consistent with business necessity.
The Act applies to private employers in Illinois with 15 or more employees. However, certain jobs are exempted from the Act: (1) jobs where applicants with criminal convictions are prohibited from applying either by federal or state law; (2) jobs where a conviction would disqualify the applicant from obtaining the bond necessary to become employed; and (3) jobs where the Emergency Medical Services Systems Act requires licensing.
Interaction with Other Laws and Enforcement
The Act does not prevent employers from advising applicants that specific offenses will disqualify the applicant from a particular employment opportunity due to state or federal law or the employer’s own policy. However, the Act does not affect protections against discrimination based on arrest records under the Illinois Human Rights Act. 775 ILCS 5/2-103. Additionally, if an applicant is asked at the appropriate time to provide information regarding criminal background, or if a criminal background check is conducted, the EEOC Background Check Enforcement Guidance principles are relevant, meaning applicants cannot be treated differently based on race, color, religion, sex, or national origin.
There is no private right of action under the Act, leaving the Illinois Department of Labor in charge of investigation and enforcement. If the Department of Labor finds that a violation has occurred, the employer will be given a written warning for the first offense, fined up to $500 for the second offense, fined up to $1500 for the third offense, and fined up to $1500 for every subsequent offense.
In passing the Act, Illinois becomes the fifth state to extend such “ban the box” restrictions to private employers, following Hawaii, Massachusetts, Minnesota, and Rhode Island. Other states that have enacted ban the box legislation affecting public and/or state employers include: California, Colorado, Connecticut, Delaware, Maryland, Nebraska, and New Mexico. Additionally, several other states are currently pursuing similar legislation, including: New Hampshire, New Jersey, and South Carolina.