By: Emily A. Shupe

On March 23, 2021, Governor J.B. Pritzker signed a bill that amended the Illinois Human Rights Act, effective immediately. Those amendments place new limitations and procedural requirements on the use of criminal conviction records in employment determinations.

The new 775 ILCS 5/2-103.1 provides that it is a civil rights violation for any employer, employment agency, or labor organization to use a conviction record as a basis to refuse to hire or take a number of other enumerated employment actions unless: (1) there is a substantial relationship between one or more of the criminal offenses and the employment; or (2) granting or continuing the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. In making such a determination, employers must consider several factors, including the length of time since the conviction, the number of convictions, the nature and severity of the conviction, the facts or circumstances of the conviction, the age of the employee at the time, and evidence of rehabilitation efforts.

Employers must engage in such an assessment before making a preliminary determination to disqualify an employee or take other adverse action. That preliminary determination must be communicated to the employee in writing, and it must contain certain disclosures and notices to the employee. The employee then has a minimum of five business days to respond to the preliminary determination notice. Employers must consider any information submitted by the employee in response before making a final determination.

If, ultimately, the employer’s final determination is one of disqualification or other adverse action, the employer must notify the employee in writing and comply with the statutory requirements for that notice. Importantly, one such requirement is to inform the employee of his/her right to file a charge of discrimination with the Department of Human Rights.

These new requirements present potential pitfalls for employers. All covered Illinois employers should review, and, if necessary, refine their criminal background check and hiring practices to ensure compliance with this new law.

Rathje Woodward LLC advises clients on a broad range of employment and labor matters, including compliance, policies and procedures, internal investigations, administrative proceedings, collective bargaining negotiations and disputes, union avoidance policies and litigation defense. If you have questions about how these new laws may impact your business, contact Emily A. Shupe, Raymond J. Sanguinetti or John R. Zemenak at 630-668-8500. Our online contact form may be found here.

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