Employment Law Update - Ban the Box Law Coming to Illinois
Mitchell J. Melamed
Timothy R. Nelson
Amy M. Gibson
Bernard A. Schlifke
John C. Sciaccotta
Robert N. Sodikoff
On July 19, 2014, the Governor of Illinois signed the Job Opportunities for Qualified Applicants Act (JOQAA). And, with that, Illinois has joined an increasing number of states and cities to have enacted “Ban the Box” laws. These laws are so named because they prohibit employers from prescreening job applicants by requiring them to check a box on job applications if they have criminal records.
When the JOQAA takes effect on January 1, 2015, private employers with 15 or more employees, as well as all employment agencies, will no longer be able to ask about, require the disclosure of, or consider an applicant’s criminal history, until it is decided that the applicant is qualified for the job and the applicant has been notified of his or her selection for an interview or, if there is no interview, until a conditional job offer has been made.
The prohibition on prescreening applicants for criminal convictions will not apply in the following three circumstances: (1) where federal or state law requires an employer to exclude from employment applicants with certain convictions; (2) where a specified crime would disqualify an applicant from obtaining a required standard fidelity bond or an equivalent bond; and (3) where the employer employs workers licensed under the Illinois Emergency medical Systems Act.
Employers should note that the JOQAA permits employers to notify applicants in writing, before or during the application process, of specific offenses that will disqualify the applicant from employment in a particular position due to federal or state law or the employer’s policy.
The JOQAA does not permit an applicant to sue a potential employer. Rather, the applicant will have to make a claim to the Illinois Department of Labor (IDOL), which has been tasked with the investigation and enforcement of the JOQAA. The IDOL is empowered to impose civil penalties for violations of the JOQAA ranging from a written warning for a first violation up to $1,500 for repeated violations or a failure to remedy an earlier violation. The fines collected only will be used to fund the IDOL’s enforcement of the JOQAA, so employers can expect the IDOL to aggressively pursue violators in order to increase its own resources.
Consequently, it is important that employers in Illinois review their employment applications and all aspects of their recruitment and hiring processes and revise them, if necessary, to comply with the law before January 1, 2015. Illinois and multi-state employers should purge criminal history questions from their job applications, especially if they use Internet-based job postings that can reach nationwide applicants. Employers who use employment agencies or other recruitment sources will need to make sure those agencies comply with the law as well because, under the JOQAA, employers are liable for the violations of their employment agencies and recruiters.
While the newly enacted JOQAA prohibits an employer from prescreening a job applicant for a criminal record, once an applicant is selected for an interview or receives a conditional offer of employment, the employer may make inquiries into the applicant’s criminal record or history by conducting a criminal background check, for example. But, employers should be aware that such inquires still must be job related and consistent with business necessity in order to avoid running afoul of Title VII and the Illinois Human Rights Act.
An employer who complies with the JOQAA may reject an applicant with a criminal record. However, bear in mind that compliance with the JOQAA may not insulate an employer from scrutiny by the Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights (IDHR), or other agencies that investigate alleged discrimination. The rejection of an applicant because of a criminal conviction can potentially expose the employer to liability under discrimination laws, such as where the practice disproportionately affects minority applicants.
A number of courts, as well as the EEOC, have addressed the issue of whether the rejection of an applicant with a criminal conviction is lawful. The EEOC has formulated guidelines concerning the use of an applicant’s criminal history in the decision-making process. Although the EEOC guidelines are not binding, they represent the best practices to follow to avoid EEOC scrutiny. Accordingly, when reviewing recruitment and hiring processes for compliance with the JOQAA, Illinois employers should also review the decision-making process they use when considering whether to reject an applicant who has a criminal record.
Every employer should work closely with its employment counsel to make sure it complies with these new and developing laws in every jurisdiction where the employer recruits. As we continue to follow the developments in this area, please feel free to contact us to discuss how your own recruitment and hiring policies will be affected in 2015.
© 2014 Aronberg Goldgehn. All rights reserved. The above material is intended for general information and promotional purposes, and should not be relied on or construed as professional advice. Under the Illinois Rules of Professional Conduct, the above information may be considered advertising material. The transmission of this information is not intended to create, and receipt of it does not create, a lawyer-client relationship.