Illinois Adds New Restrictions for Employers Using Criminal Background Checks

Employers in Illinois should take note of legislation recently signed into law by Governor J.B. Pritzker. Previously known as Senate Bill (SB) 1480, the legislation creates significant restrictions for employment-related criminal background checks. Employers found in violation of the law will be cited for violations of civil rights—a liability risk that companies and organizations can avoid by reviewing SB 1480 as soon as possible and adopting new policies to ensure compliance.

SB 1480 is not a brand-new law; the legislation amends the pre-existing Illinois Human Rights Act. The legislation has made it a violation of state civil rights law for employers to use a candidate’s criminal history in employment decisions, with some exceptions.

The first exception is if the employer can show that there is a “substantial relationship” between the candidate’s criminal history and the job at hand.

SB 1480 defines “substantial relationship” as an “opportunity” in the line of work “for the same or a similar offense to occur,” or the likelihood of “circumstances [of the job] leading to the conduct for which the person was convicted.” Unless employers can show a reasonable argument for why a candidate’s past criminal activity is likely to recur due to the duties of the position, the employer cannot disqualify the candidate from consideration based on criminal history.

The second exception is if the employer can show that hiring a candidate with a criminal history would pose “unreasonable risk” to property or the safety of others (including customers, other employees, and the public).

In addition to these exceptions, SB 1480 updates the Illinois Human Rights Act by legally requiring employers to consider six mitigating factors when trying to determine whether a candidate’s criminal history satisfies one of the exceptions.

The employer must consider how much time has elapsed since the candidate’s conviction(s); how many convictions the candidate has on their record; the nature and severity of the conviction, and its relationship to overall safety and security risks; how old the candidate was when they were convicted of the crime; and whether there is evidence that the candidate has taken steps towards rehabilitation.

Finally, employers that wish to disqualify candidates based on criminal background checks must go through an SB 1840 “interactive assessment” with the candidate.

If an employer decides that the business has grounds to bar a candidate from employment because of criminal history, that employer must first provide written notice to the candidate of the preliminary decision. The candidate then has at least five business days to respond with additional information or explanation about their background.

The employer must take time to consider the candidate’s response before making a final employment decision. If the employer does decide to move forward with an adverse action, the business must send a second notice to the candidate explaining the reason for the hiring decision and informing the candidate that they have the right to file a discrimination claim through the Illinois Department of Human Rights if they see fit to do so.

These ideas are not new to hiring and background checks. The SB 1840 updates to the Illinois Human Rights Act incorporate guidance from the Equal Employment Opportunity Commission with the requirement that employers find a “substantial relationship” between a candidate’s criminal history and the job, and existing requirements in the Fair Credit Reporting Act with the protocol for notifying candidates about adverse action.

Despite the familiarity of these types of policies, the new legislation should trigger a review of criminal background checks and hiring policies by all employers in Illinois.

SB 1840 has increased the liability risk and overall cost of noncompliance for Illinois companies. These new restrictions took effect immediately upon Governor Pritzker’s signing of the bill on March 23, which means that they are currently fully enforceable.

To learn more about FCRA requirements, read the help article in our resource center.