Timing of Employers’ Criminal Inquiries and Background Checks
An Illinois legislature has recently adopted the Job Opportunities For Qualified Applicants Act (the “Job Opportunities Act”). Effective January 1, 2015, the Job Opportunities Act prohibits certain employers from inquiring into or considering a job applicant’s criminal history or background prior to considering such applicant’s qualifications. The Job Opportunities Act applies to private Illinois employers who have fifteen (15) or more employees. This act also applies to employment agencies, which are defined as “any person or entity regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.”
Pursuant to the Job Opportunities Act, the employers must determine that an applicant is qualified for the position and has been notified about his or her interview prior to any inquiries about such applicant’s criminal history or background. If the employer does not interview an applicant, any inquiries about criminal record or background check shall be deferred until after a conditional offer of employment has been made to the candidate.
The Purpose of the Job Opportunities Act
The Job Opportunities Act is intended to minimize the negative effect of a disclosure of an applicant’s criminal conviction or background at the job application stage. The act assumes that employer will be more inclined to hire an applicant with a criminal background if given a chance to qualify such applicant and meet him or her in person.
Despite the legislature’s intent, it’s unlikely that this act would lead to significant changes in the employers’ hiring practices because the act does not provide for a private cause of action. Moreover, penalties for the violations of the act are minimal. Employers that violate the act are subject to four tiers of civil penalties varying from a written warning to a $1,500 fine for each violation. The act vests the enforcement and regulatory authority with the Illinois Department of Labor. All moneys recovered as civil penalties for the violations of the act will be deposited into the Job Opportunities for Qualified Applicants Enforcement Fund, a special fund created by the Illinois treasury to be used for the enforcement of the act.
Exceptions from the Job Opportunities Act
This act does not apply for positions where:
- Employers are required to exclude applicants with certain criminal convictions from employment due to the applicable federal or state law requirements;
- A standard fidelity bond or an equivalent bond is required and an applicant’s conviction of specified criminal offenses would disqualify the applicant from obtaining such a bond (in such cases, an employer may question or otherwise inquire whether an applicant has ever been convicted of any of those offenses); or
- Employers employ individuals licensed under the Emergency Medical Services (EMS) Systems Act.
Importantly, the act does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify such applicants from employment in a particular position due to federal or state law requirements or the employer’s policy.
If you have any questions about the new Illinois Job Opportunities Act or any other issues associated with business or employment law, please contact Oleg N. Feldman with Lexern Law Group at (847) 777-6838.
You can find an original text of the Job Opportunities Act (820 ILCS 75/1 et seq) at the following link: http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3564&ChapterID=68
This article is intended to serve as a general summary of the issues outlined therein. While this article may include general guidance, it is not intended as, nor is it a substitute for, a qualified legal advice. Your receipt of this article from Lexern Law Group, Ltd. (the “LLG”) or any of its attorneys does not create an attorney-client relationship between you and the LLG. The opinions expressed in this articles are those of the authors of the article and does not reflect the opinion of the LLG.