Illinois Governor J.B. Pritzker recently signed into law Senate Bill 1480 (Illinois Public Act 101-0656), which took effect immediately. In three important respects, the Bill introduced new requirements for Illinois employers. First, the law amends the Illinois Human Rights Act to impose immediate restrictions on employers who seek to consider criminal convictions when making employment decisions. Second, the law amends the Illinois Equal Pay Act to establish equal pay certification procedures for private employers with more than 100 employees in Illinois. Third, the law amends the Illinois Business Corporation Act to mandate that certain employers report workforce demographic data for publication by the Illinois Secretary of State. Illinois employers should evaluate and update their employment policies and decision-making processes to ensure compliance with these enactments.

Below, we provide an overview of key components of this legislation as well as recommended steps for employers to comply with these new requirements.

1. Restrictions on an Employer's Use of Criminal Conviction Records

Overview. As amended by Senate Bill 1480, the Illinois Human Rights Act (IHRA), 775 ILCS 5, now makes it more difficult for Illinois employers to base an adverse employment decision on the criminal history of an applicant or employee. Going beyond the IHRA's existing, general prohibition of the use of arrest records in employment decisions, an employer now faces stringent limits on its ability to consider conviction records. A "conviction record" is defined as any "information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law."1

Under the amendment, reliance by an employer on a conviction record in hiring, firing, promoting or a variety of other employment decisions is a civil rights violation, with three specific exceptions.2 First, the amendment permits reliance on conviction records where such reliance is "authorized by law."3 Second, an employer may use a conviction record as a basis for its decision if a "substantial relationship" exists between the conviction and the employment position sought or held.4 A substantial relationship means consideration of whether the employment position will offer an opportunity for "the same or a similar offense to occur" and whether the "circumstances" that led to the conviction "will recur in the employment position."5 Third, an employer may rely on a conviction record if employing or continuing to employ the individual would pose an "unreasonable risk" to property or to the safety or welfare of specific individuals or the general public.6

In assessing whether the second and/or third exception referenced above applies, an employer cannot reflexively reject the applicant or employee. Instead, the IHRA now requires the employer to consider the following mitigating factors before disqualifying an employee based on a conviction record:

  • "the length of time since the conviction";
  • "the number of convictions that appear on the conviction 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."7

The statute does not provide additional guidance, however, as to how employers should prioritize or balance these various factors.

In addition, the IHRA now includes notice requirements once an employer has made an initial determination to disqualify an applicant or employee based on a conviction. Specifically, an employer must provide written notice of its reasoning to the employee along with a copy of any conviction history report and information on how the employee can challenge any of the grounds for its decision. The applicant or employee then has five business days to respond with evidence contesting the accuracy of the information or other mitigating evidence, such as evidence of rehabilitation. If the employer subsequently reaffirms its reliance on the conviction record, it must provide the employee with a second written notice that sets forth its reasoning, any existing procedure the employer has for an employee to request reconsideration and informs the applicant or employee of the right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).8

The IDHR has provided further details on the IHRA's criminal conviction record protections in a series of Frequently Asked Questions.

Recommendations for Employers. Employers who conduct criminal background checks on job applicants or employees should exercise care and revisit their procedures if they wish to continue conducting such background checks. Specifically, employers should review and revise their policies and procedures to ensure that they do not automatically or broadly disqualify an applicant or employee based only on the existence of a criminal conviction. Instead, an employer should implement a robust process to determine whether one or more of the statutory exceptions may permit the employer to consider a specific criminal conviction for a particular job—i.e., the consideration is authorized by law, the conviction is substantially related to the job or the conviction poses an unreasonable safety or welfare risk for the job—and whether any mitigating factors apply. Employers should also build in time to accommodate the required five-business-day period for an applicant or employee to respond to a preliminary, adverse employment decision that is based on the conviction record. Throughout their decision-making processes, employers should document their interactive assessment with the applicant or employee. Documenting that process, as well as the employer's business rationale for relying on the conviction record, may strengthen the defenses to potential employment-related claims by applicants or employees.

Footnotes

1 775 ILCS 5/1-103(G-5).

2 Adverse employment decisions include "refus[ing] to hire, . . . segregat[ing], or . . . act[ing] with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment." 775 ILCS 5/2-103.1(A).

3 See 775 ILCS 5/2-103.1(A). For example, Section 19 of the Federal Deposit Insurance Act prohibits financial institutions from employing a person "convicted of any criminal offense involving dishonesty or a breach of trust or money laundering," absent "prior written consent" of the Federal Deposit Insurance Corporation. 12 U.S.C. § 1829(a)(1). The IHRA amendment likely permits consideration of a conviction record in such an instance.

4 775 ILCS 5/2-103.1(A)(1).

5 775 ILCS 5/2-103.1(A).

6 775 ILCS 5/2-103.1(A)(2).

7 775 ILCS 5/2-103.1(B).

8 775 ILCS 5/2-103.1(C)(3).

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2020. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.