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Ill.: Assembly Bans Criminal Background Screening of Job Applicants

By Susan R. Heylman  6/27/2014
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The Illinois General Assembly passed a ban-the-box bill prohibiting employers from inquiring about, considering or requiring disclosure of the criminal record or criminal background of a job applicant until the applicant has been determined to be qualified for the position.

House Bill 5701, approved on May 29, 2014, establishes the Illinois Job Opportunities for Qualified Applicants Act. Under the bill, once the employer has taken the step to determine that an individual is at least qualified for the position and that he or she would be granted an interview, the employer can ask for a background check or can at least ask the question of whether the applicant has a criminal history, said Peter Gillespie, an attorney with Fisher & Phillips in Chicago.

“Employers must consider whether there is a legitimate business reason for asking because it will be a lot easier for someone to establish that criminal background was a factor that was considered as opposed to when it was just checking a box on an application,” he said.

If the employer or employment agency is not conducting interviews, it can ask questions about criminal records or history after a conditional offer of employment is made.

The bill applies to employers with 15 or more employees and to employment staffing agencies. The law includes exemptions for employers who are required to exclude applicants with certain criminal convictions for positions due to federal or state law; where a bond is required and a specified criminal conviction would disqualify the applicant; and for emergency medical responders who are licensed under the Emergency Medical Services Act.  In these situations, the employer can ask about criminal background at the application stage, Gillespie said.

The Illinois Department of Labor will investigate alleged violations under the act by employers or employment agencies. If the department finds that a violation has occurred, penalties range from a warning to civil penalties, which increase for subsequent violations. 

House Bill 5701 is before the governor awaiting his signature. If signed, it will take effect Jan. 1, 2015.

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.

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