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By: Laura E. Schrick

Lawfully hiring and firing employees in Illinois can feel complex, and rightfully so, as a number of federal, state and sometimes local laws apply. Not only that, but the laws often change and new laws may be enacted. One area that changed recently is Illinois state law applicable to the use of criminal convictions in hiring and firing decisions.

Illinois enacted “ban the box” legislation, known as the Job Opportunities for Qualified Applicants Act, in 2015. This law is intended to help ex-offenders find private sector employment by precluding most employers from performing criminal background checks or inquiring about convictions until an applicant is determined to be qualified for an open job.

Earlier this year, Illinois went one step further by enacting The Employee Background Fairness Act, which amended the Illinois Human Rights Act to extend protection to Illinois residents with conviction records. Essentially, this law precludes employers from disqualifying job applicants or terminating existing employees based on conviction records unless the conviction bears a “substantial relationship” to the job or there is an “unreasonable risk” to property or safety. Those who believe they have been denied rights afforded to them until the Act can file a Charge of Discrimination with the Illinois Department of Human Rights and potentially recover damages and other relief.

In evaluating whether or not a “substantial relationship” or “unreasonable risk” exists, an employer must consider: (1) the length of time since the conviction; (2) the number of convictions; (3) the nature and severity of the conviction and its relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the employee’s age at the time of the conviction; and (6) rehabilitative efforts.

The Act also imposes an interactive process by which the employer and employee/applicant must explore the accuracy of the employer’s conviction record and its analysis of the employee’s ability to perform the job under the “substantial relationship” and “unreasonable risk” tests. This process includes requirements that the employer provide a notice of the employer’s intent to act based upon a conviction record and to afford the employee five days to respond. The employer cannot lawfully act during this five day window. If the employer elects to proceed with the adverse action at the conclusion of the interactive process, it must send the employee a further notice explaining the basis for the decision and informing them of any internal procedure for reconsideration as well as their right to file a Charge of Discrimination with the Illinois Department of Human Rights.

The experienced employment lawyers of Mathis, Marifian & Richter, Ltd. are readily available to assist with these and other employment issues as they arise. Please contact our attorneys at (618) 234-9800 for advice on your employment matters.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.