Illinois has joined the quickly growing number of states and cities (including Massachusetts, Minnesota, Rhode Island, Hawaii, Philadelphia, San Francisco, Seattle, Baltimore, Newark and Buffalo) that have passed "ban the box" legislation—so named based on the box found on most employment applications asking whether an applicant has ever been convicted of a crime.
The newly enacted Job Opportunities for Qualified Applicants Act, available here, which takes effect January 1, 2015, prohibits private employers with 15 or more employees, as well as all employment agencies, from asking about, requiring disclosure of, or considering an applicant's criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and has notified the applicant of his or her selection for an interview or – if there is no interview – until a conditional job offer has been made. These restrictions do not apply if: (1) employers must exclude applicants with certain criminal convictions from an applied-for position under federal or Illinois law (in which case the employer may notify applicants in writing of the specific disqualifying offenses); (2) a standard fidelity or equivalent bond is required, and an applicant's conviction of one or more specific offenses would disqualify him or her from obtaining such a bond (in which case the employer may ask the applicant if he or she has been convicted of any such offenses); or (3) the position is one that requires licensing under the Emergency Medical Services Systems Act.
The Illinois Department of Labor can investigate any alleged violations and impose civil penalties ranging from a written warning, for a first violation, up to $1,500 for a repeated violation or a failure to remedy an earlier violation. The law does not allow applicants themselves to sue.
The Illinois law reemphasizes what we reported in an earlier alert —that multi-state employers should purge criminal history questions from their job applications, especially if they use Internet-based job postings that can reach nationwide applicants. In addition, every employer should work closely with its employment counsel to make sure it complies with these new and developing laws in every jurisdiction where the employer recruits. Employers should also keep in mind that certain states have additional laws that regulate this area, such as Illinois' Human Rights Act, which prohibits using arrest-record information or expunged criminal convictions when making employment decisions.
Originally published on Forbes.com.
This article is presented for informational purposes only and is not intended to constitute legal advice.
