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Employer’s May Use Criminal History During the Hiring Process

Employer’s May Use Criminal History During the Hiring Process

On February 5, 2021, Senate Bill 1480 (the “Bill”) was sent to Governor Pritzker, which he is expected to sign into law. The Bill amends the Illinois Human Rights Act concerning an employer’s ability to consider a potential or current employee’s criminal history when making employment decisions.

As written, the Illinois Human Rights Act prohibits employers from considering an employee’s criminal history during the hiring process. Additionally, the “Ban the Box” law disallows employers from even asking about a potential employee’s criminal convictions.

The amendment, on the other hand, provides that an employee’s criminal history may be used if there is a substantial relationship between the criminal history and the employment, or when employment would involve an “unreasonable” risk to property, safety, or welfare of a specific individual or the general public. Six factors must be considered when determining if criminal history may be used in the hiring analysis, including:

  1. the length of time since the conviction;
  2. the number of convictions that appear on the conviction record; 
  3. the nature and severity of the conviction and its relationship to the safety and security of others;
  4. the facts or circumstances surrounding the conviction;
  5. the age of the employee at the time of the conviction; and
  6. evidence of rehabilitation efforts.

If using the above factors, an employer chooses not to hire an individual; the employer is required to give notice to the affected individual and consider any information provided in response by the affected individual about why the conviction should not be dispositive.

Employers and employees, if you would like guidance in dealing with the use of criminal history in employment decisions, please contact the Employment attorneys of Bozeman, Neighbour, Patton & Noe, LLP.