June 2021

State Updates

 

Illinois restricts use of criminal records

05/06/21

Author: ADP Admin/Friday, April 30, 2021/Categories: Compliance Corner , State Compliance Update, Illinois

Illinois has enacted legislation (Senate Bill 1480) that restricts the use of conviction records for employment purposes. Senate Bill 1480 took effect immediately.

Restrictions:

Under the law, employers are generally prohibited from using a conviction record for employment purposes unless:

  • There is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
  • Employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The law defines "substantial relationship" to mean a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.

Additionally, before making a decision to bar employment, an employer must assess the risk that the employee poses to the workplace in the particular position and determine whether the risk is unreasonable under the circumstances, according to the Illinois Department of Human Rights.

Factors to Consider:

In making a determination about whether a substantial relationship or unreasonable risk exists, the employer must consider the following factors:

  • The length of time since the conviction;
  • The number of convictions that appear on the record;
  • The nature and severity of the conviction and its relationship to the safety and security of others;
  • The facts or circumstances surrounding the conviction;
  • The age of the employee at the time of the conviction; and
  • Evidence of rehabilitation efforts.

Preliminary Decision Notice:

If, after considering the above factors, the employer makes a preliminary decision that the employee's conviction record disqualifies them, the employer must notify the employee of the decision in writing. The notification must contain all of the following:

  • Notice of the disqualifying conviction(s) that are the basis for the preliminary decision and the reasoning for the disqualification;
  • A copy of the conviction history report, if any; and
  • An explanation of the employee's right to respond to the notice before that decision becomes final. The explanation must inform the employee that the response may include, but isn't limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.

The employee must be given at least five business days to respond to the notification. The employer must consider information submitted by the employee before making a final decision.

Final Decision Notice:

If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the employee's conviction record, the employer must notify the employee in writing of the following:

  • A notice of the disqualifying conviction(s) that are the basis for the final decision and the reasoning for the disqualification;
  • Any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
  • The right to file a complaint with the Illinois Department of Human Rights.

Other Changes:

Senate Bill 1480 also requires employers with more than 100 employees in the state to obtain an "equal pay registration certificate." For more information, see the text of the law.

Compliance Recommendations:

Illinois employers should review policies and practices to ensure compliance with Senate Bill 1480. Anyone involved in the hiring process should be trained on the law. Additional information on the law can be found in guidance released by the Illinois Department of Human Rights.

Please contact your dedicated service professional with any questions.

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