Illinois recently joined the growing list of states and municipalities that have enacted "Ban the Box" legislation imposing restrictions on employers' ability to inquire into applicants' criminal history. Illinois law already restricts inquiries and employment decisions regarding sealed and expunged criminal records and arrest history. Under the new Job Opportunities for Qualified Applicants Act, which takes effect January 1, 2015, employers of 15 or more employees and employment agencies will be prohibited from inquiring into or considering any criminal records or criminal history in the initial application process. For the text of the statute,click here.
Specifically, with some limited exceptions, covered entities in Illinois must now wait to inquire about criminal history until after the employer has determined that the applicant is qualified for the position and has either notified the applicant that he or she has been selected for an interview or, if there is no interview, has made a conditional offer of employment to the applicant. Employers can notify applicants that certain offenses will disqualify the applicant from employment in a particular position due to state or federal law, or employer policy.
The Act provides the following exceptions to these prohibitions:
- Employers who employ Emergency Medical Services (EMS) workers licensed under the EMS Systems Act;
- Employers required to exclude applicants with certain criminal convictions from employment due to federal or Illinois law; and
- For positions where a bond is required and one or more specified offenses would disqualify the applicant from obtaining the bond, the employer may inquire as to whether the applicant has been convicted of such offenses.
The Illinois Department of Labor was given investigatory, rulemaking, and enforcement authority under the Act, and can seek civil penalties through actions in Illinois Circuit Court or administrative proceedings. Penalties for violations include a written warning with 30 days to cure for a first violation, up to a $500 fine for a second violation or where the first previous violation was not remedied, and fines up to $1500 for subsequent violations or where the employer failed to cure earlier violations within time frames specified in the statute.
Illinois employers need not wait for regulatory guidance from the Department to come into compliance with this new law, however. With the limited exceptions stated above, to comply with the new law, all questions regarding criminal history should be removed from job applications or any other forms or questioning that occur prior to the point at which the applicant is offered an interview or a conditional offer of employment. While the Act does allow employers to specify particular disqualifying offenses on an application in accordance with state or federal law or employer policy, the EEOC has made clear that it discourages "one-size-fits all" disqualification policies unless the policy is job-related and consistent with business necessity. Moreover, numerous states have incorporated restrictions into their civil rights laws and guidance regarding disqualification based on criminal history. Employers with multi-state operations should tread carefully when assessing an applicant’s criminal background history.