Beginning January 1, 2015, employers in Illinois with at least fifteen employees must remove questions regarding criminal background history from job applications and must postpone any inquiries regarding criminal background history until a job interview or conditional job offer has been extended to a job applicant under the Job Opportunities for Qualified Applicants Act (the “Act”), which Governor Quinn is expected to approve.
Specifically, the Act will prohibit an employer from (a) inquiring about or into, (b) considering or (c) requiring disclosure of the criminal background history or criminal record of an applicant “until such applicant has been determined qualified for the position and notified that the applicant has been selected for an interview”. If no interviews are conducted for a position, an employer may not inquire into or about the criminal background history or criminal record of an applicant until a conditional offer of employment has been extended to such applicant.
Exempt Positions and Employers
It is important to note that the Act will not apply to:
(a) positions that, under state or federal law, cannot be held by applicant who has been convicted of certain crimes;
(b) positions that require a standard fidelity bond, or equivalent bond, and where a conviction would disqualify the applicant from obtaining such a bond;
(c) positions that require work with a contractor performing construction (as defined in the Act);
(d) employers that employ individuals under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act; and
(e) employers that employ individuals licensed under the Emergency Management Services (EMS) Systems Act.
Interplay with Employers’ Ability to Utilize Arrest Records
The Act will not replace or supersede existing provisions of the Illinois Human Rights Act that prohibit employers from asking an applicant whether the applicant has been arrested and using an arrest record to make any type of employment decision.
Under the Act, the Illinois Department of Labor is charged with investigating and enforcing any alleged violation of the Act. If the Department finds that a violation of the Act has occurred, the Department may impose the following penalties:
(a) for the first violation, an employer will receive a written warning and will have 30 days to remedy such violation.
(b) for the second violation, or if the first violation is not remedied within 30 days from the date of the warning, the Department may impose a fine up to $500 on an employer.
(c) for the third violation, or if the first violation is not remedied within 60 days from the date of the warning, the Department may impose a fine up to $1,500 on an employer.
(d) for any subsequent violations, or if the first violation is not remedied within 90 days from the date of the warning, the Department may impose a fine up to $1,500 on an employer for every 30 days that expire without compliance with the Act.
With this expansion of Illinois law and threat of monetary penalties, employers should review current employment policies and practices. Please contact RMZ for questions regarding the Act or to review and revise existing employee handbooks.