In Illinois, it has long been the law that an employer may not use an arrest record as the basis for making a job related decision. Under little noticed legislation signed recently, Governor Pritzker broadened that prohibition by now adding that, under most circumstances, an employer may not use a conviction record to base an employment decision either. This is groundbreaking legislation and prohibits the use of a conviction record as the basis for an employment decision, unless (1) there is a “substantial relationship” between one or more of a candidates prior convictions and the job at issue; or (2) employment would involve “an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”
In making the determination whether or not to use a criminal conviction to make an employment decision, employers must consider six factors:
- The length of time since the conviction;
- The number of convictions appearing on an individual’s 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 individual at the time of the conviction; and
- Evidence of rehabilitation efforts;
In the event that an employer does decide to use a conviction record as the basis for an employment decision, the employer must first notify the individual, in writing of the intent to use the conviction record and give the employee or applicant the opportunity to respond and present additional evidence before any final decision.
An employer should take stock of its employment policies as they relate to the use of a criminal conviction as the basis for any employment decision. There are limited exceptions to this new law, such as when the criminal conviction would bar employment as required by federal or state law or regulation. For example, the Illinois Health Care Worker Background Check Act establishes a number of “disqualifying offenses” that would likely fall within the parameters of the new law’s exceptions.
As you can see, there are a number of questions and areas of potential uncertainty brought about by this dramatic change in the use of criminal convictions upon which an employer can base an employment decision. We are here to help guide you through these turbulent times. A law firm that concentrates in employment related matters like ours can help navigate this maze of new laws. With over 37 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at through our website at www.boznoslawoffice.com.
