With unemployment skyrocketing at an unprecedented rate because of COVID-19, there is no doubt that many individuals with a criminal record will find their past resurfacing, if not haunting them, as they apply for new work. The good news is that legal tools are available to getting a job with a criminal record without becoming a potential liability to employers.
Employers are interested in criminal background checks for a variety of reasons. According to the EEOC, one survey of employers showed that 92% of those responding “subjected some or all of their job candidates to criminal background checks1.” The primary reasons for performing these checks include:
- interest in thwarting theft and fraud;
- concerns about workplace violence;
- wanting to avoid potential liability for negligent hiring; and,
- mandatory state or federal requirement2.
Knowing that a background check is inevitable, there are a number of tools in the legal war chest that applicants and employers alike can use to make rehiring a win-win situation.
Expunging/Sealing Criminal Records: Start Now
The best tool available for Illinois job applicants with a criminal past is clearing their background from the official record3. In doing so, when a background check is done, the report will show that the applicant has no criminal history. An added bonus is that Illinois law specifically prohibits employers from asking if an applicant has had criminal records expunged or sealed. Thus, once the record is cleared, it won’t resurface and harm the prospect of getting a job.
The advantage of beginning the process now is that when looking for work, employers are more inclined to hire someone who is in the process of having their record cleared than otherwise. For most Illinois counties the process to expunge/seal criminal records takes between six to nine months to complete. The exception is the First District of Cook County, which encompasses Chicago. First District cases take nearly one year to complete. With COVID-19 slowing the judiciary and the recent cannabis law automatically expunging certain misdemeanor marijuana convictions, these time frames are expected to lengthen.
Between the two, expunging is the better relief. Expungement in Illinois means the record that law enforcement holds is physically destroyed and the court’s record of the case gets impounded. Expungement is only available to non-convictions and certain misdemeanor cannabis convictions. Sealed records are not visible to the general public, but are visible to law enforcement. Also, sealed felony convictions are visible to certain employers; sealed misdemeanor convictions are not visible to employers. To learn more, read “Expunging and Sealing: Who Sees What?”
The benefit to the employer is that a background check showing no criminal record absolves the employer from liability should this become relevant in the future. It also allows the employer to evaluate the applicant for who he/she is today and not based on a poor choice from the applicant’s past. The benefit to the applicant is that the law allows that person to answer, “No,” if asked whether they have an arrest or conviction. They can answer this with the assurance that the background check will confirm their answer.
FCRA: Background Checks, the 7-year Rule, and Its Salary Exemption
Employers doing criminal background checks must comply with both federal and state law. The primary federal law regulating employment background checks is the Fair Credit Reporting Act4 (FCRA). The FCRA requires applicants to give their written consent before an employer can perform a background check.
Under the FCRA, background check companies are prohibited from providing records of arrest that are older than seven years from the date of the company’s report. Flipping this around, if a background check is done, the company will report arrests that happened within the past seven years only. This is aptly called the seven-year rule and it applies to both felony and misdemeanor arrests.
There is an exemption to the seven-year rule. Where a report is used in connection with the employment of any individual with an annual salary greater than $75,000, then the seven-year rule does not apply. Thus, for those applying for jobs that offer a $75K (+) salary, all past arrests will be reported regardless of how long ago the arrest occurred and regardless of its class.
The seven-year rule does not apply to criminal convictions. Records of criminal convictions remain visible and will be included in the results of a background check. This applies to both misdemeanor and felony convictions.
Many employers use third-party agencies to perform their background checks and, as such, the above applies to those background check companies (which the FCRA calls credit reporting agencies). The above does not apply to employers who do their own background check. In those situations, anything in the official public record remains visible to the employer regardless of when the arrest or conviction occurred and regardless of the type of offense.
The Civil Rights Act – Title VII
Title VII of the Civil Rights Act recognizes that employers can potentially violate an applicant’s civil rights based on race or national origin if the employer improperly uses the applicant’s criminal history in making employment decisions5. This form of discrimination manifests through either disparate treatment of or disparate impact against the applicant, thus violating the applicant’s civil rights.
It is important for employers and applicants to become familiar with the civil rights protections afforded under Title VII. In understanding this body of law, employers can better protect themselves by eliminating policies or practices that exclude people from employment based on their criminal record. Employers can further protect themselves by ensuring they have a narrowly tailored written policy and procedure for screening applicants who present a criminal past.
Moreover, applicants who have evidence that they were denied a job because of disparate treatment or because a company’s policy causes a disparate impact on them have the opportunity to uphold their civil rights and correct the company’s unlawful practice. They must file their charge of discrimination with the EEOC within 300 days of the alleged occurrence.
Illinois Human Rights Act
It is a civil rights violation for Illinois employers to ask applicants about arrests in which there was no conviction6. This law extends to inquiring about criminal records that were either expunged or sealed. This rule does not, however, apply to those employers who are required by law to perform a fingerprint background check prior to hiring. Such employers generally include those in the following fields:
- health care,
- child care and schools,
- local government,
- carnivals, and
- private detectives.
The Illinois Department of Human Rights (“IDHR”) investigates charges of employment discrimination filed against private employers, state or local government, unions and employment agencies. Generally speaking, the employer charged with discrimination must have at least 15 employees in the Illinois in order for the IDHR to open an investigation. The exception to this in the context of discrimination based on the applicant’s arrest record or expunged/sealed criminal history is if:
- the employer is a public contractor (a public contractor is an employer who does business with the Illinois or a unit of local government); or,
- the employer is a unit of State government.
Similar to Title VII, an applicant must file with the IDHR their charge of discrimination within 300 days of the alleged act.
Illinois Job Opportunities for Qualified Applicants Act
At the initial stage of the application process, the Job Opportunities for Qualified Applicants Act7 (“IL-JOQAA”) prohibits employers from asking about an applicant’s criminal history. IL-JOQAA applies to private sector employers of 15 or more employees and not to government employers.
For some employers, federal or State law or the employer’s own policy may require the employer to inform applicants of the specific offenses that would disqualify applicants from employment. In these situations, the law allows the employer to comply by providing this information in writing to the applicant.
These employers may inquire into the applicant’s criminal background after the employer has determined that the applicant is qualified for the position and informed the applicant that he/she has been selected for an interview. If an employer does not interview applicants as part of the hiring process, then the employer may ask about the applicant’s background after a conditional offer of employment has been made.
There are three major exemptions to this rule and other provisions that the employer should learn about to see if and how they apply to the employer.
City of Chicago: Closing the JOQAA Loophole
Where IL-JOQAA stopped, Chicago’s municipal8 version of this same law (Chicago-JOQAA) picks up. As such, employers within the City of Chicago are subject to an enhanced version of IL-JOQAA.
Unlike its Illinois counterpart, Chicago-JOQAA applies to both private and public sector employers. Chicago employers that are not subject to the Illinois version of IL-JOQAA, “may not inquire about or into, consider, or require disclosure of an applicant’s criminal record or criminal history until after the applicant has been determined qualified for the relevant position and notified that he/she has been selected for an interview10.
Also different from the Illinois Act, under Chicago-JOQAA, learning about a criminal conviction cannot be the sole reason to disqualify the applicant. The municipal law provides a list of things the employer should consider when learning of a criminal record. This lists ranges from the nature of the applicant’s offense and sentencing to the amount of time that has passed since the most recent conviction and the relationship between the crimes and the nature of the relevant position11.
Other provisions remain similar to IL-JOQAA such as employers may provide written notice of specific offenses that will disqualify the applicant from a position and the three major exemptions listed in the Act.
Once COVID abates and job opportunities arise, millions of people will be competing for jobs. For those with a criminal record, now is the time to begin the process of expunging or sealing their record. Until the record gets cleared, the applicant can mitigate the facts in their favor by telling an employer that the record is in the process of getting cleared. Applicants also have other tools to use in their legal war chest to help make the process a more even playing field between them and other applicants. For employers, laws are in place to protect them from liability and for looking at the applicant as they are. This allows the employer to focus on the applicant’s experience and skillset relevant to the position – and not their personal past – in determining if the applicant is a good hire.