September 2014Volume 102Number 9Page 418

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New Illinois law limits criminal history checks on job applicants

Beginning in January, employers won't be allowed to require prospective employees to disclose their criminal history on a job application.

The "Job Opportunities For Qualified Applicants Act," which takes effect January 1, 2015, prohibits employers from inquiring into, considering, or requiring the disclosure of a job applicant's criminal history or background on a job application. Travis Ketterman, an employment attorney and partner at Whitfield, Mc Gann, & Ketterman, said the Act seeks to create a "level playing field" for applicants with a past conviction. By prohibiting disclosure of an individual's criminal background at the job application stage, the Act eliminates the potentially chilling effect that such a disclosure has on job applicants who have a past criminal conviction, he said.

Section 10 of the Act defines an employer as an entity that has 15 or more employees. The Act also covers employment agencies, defined as entities that "regularly procure employees for an employer or to procure for employees opportunities to work for an employer."

The Act excludes three types of employers. Section 15 exempts those required by federal or state law to exclude applicants with specific types of convictions. It also exempts employers that require a standard fidelity or equivalent bond where one or more specific criminal convictions would disqualify the applicant and those that employ individuals licensed under Illinois' Emergency Medical Services (EMS) Systems Act.

Employers are allowed under the Act to notify applicants in writing of the "specific offenses that will disqualify an applicant from employment in a particular position due to federal or State law or the employer's policy." According to Ketterman, a blanket statement that all criminal convictions disqualify an applicant would defeat the Act's stated purpose and undermine its overall goal of creating a level playing field for job applicants with a past conviction.

Employers may also inquire into an applicant's criminal background once he or she has been deemed qualified for a specific position and selected for an interview or, if the employer is not conducting interviews, only after making a conditional offer of employment. This way, "employers may be more inclined to give an applicant with a past conviction a chance" by first establishing his or her qualifications, Ketterman said.

No private cause of action

Section 20 of the Act vests enforcement and rulemaking authority in the Illinois Department of Labor. It does not create a private cause of action for aggrieved job applicants. Vesting enforcement power solely in the Illinois Department of Labor is a "good compromise" because it "funnels claims to the Illinois Department of Labor as an intermediary," which can then consider the relative merits of a claim, Ketterman said. A private cause of action could open the floodgates and overburden Illinois state courts, he said.

Employers that violate the Act are subject to four tiers of civil penalties. A first violation results in a written warning providing notice of the penalties for subsequent violations and giving the employer 30 days to remedy. If the violation is not remedied within the 30-day window or a second violation occurs, the Department of Labor may impose a civil penalty of up to $500.

If the violation still isn't remedied after 60 days or a third violation occurs, the Department may impose an additional civil penalty of up to $1,500. If the violation isn't remedied within 90 days and yet another violation occurs, the Department may impose a civil penalty of up to $1,500 for every 30 days that pass without compliance.

- Matthew Hector

Matthew Hector is a Chicago lawyer.

Mark Mathewson is the ISBA director of publications.

Member Comments (1)

While I practice employment law mostly representing individuals, I see this as nothing but political pandering. With no private right to a civil action, the underfunded State agencies cannot be expected to actively pursue enforcement.
Enforcement will be largely impossible due to the lack of any objective measures of what constitutes a violation.
An employer need only take the application process to the point of interviews and then is free to refuse a job offer to anyone with a criminal conviction.
The State would do a better service by enforcing the existing anti-discrimination laws and speeding up the investigation process in those areas. As to this new law, it will sit on the shelf and gather dust.

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