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By: Mark S. Schuver

Effective January 1, 2015, employers in Illinois with more than 15 employees will be prohibited from asking job applicants about their criminal conviction record.  Awaiting signature by the Governor, the Illinois “Job Opportunities for Qualified Applicants Act” states that an employer “may not inquire about or into, consider or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determine [to be] qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant.”

What this means is that Illinois employers will no longer be permitted to include questions on job applications inquiring about an applicant’s criminal history.  This does not mean that an employer is completely prohibited from obtaining criminal background information.  However, they may do so only after they have notified the applicant that they have been selected for an interview, or after a conditional offer of employment has been made.  The Act further allows employers to notify applicants in advance of specific criminal offenses which would disqualify them from employment in a particular position, as long as they do so in writing.  

The Act applies to all employers and employment agencies in Illinois with 15 or more employees, but excludes employers who are prohibited from hiring applicants with certain criminal convictions due to federal or state law.  The Act also excludes employers who employ individuals licensed under the Emergency Medical Services (EMS) Systems Act.  In addition, where an employee is required to be bonded and a specific criminal offense would disqualify the applicant from obtaining the bond, the employer may include a question on the application or otherwise inquire whether the applicant has ever been convicted of any of the disqualifying criminal offenses.

The Act will be enforced by the Illinois Department of Labor, who will have authority to impose civil penalties ranging from a written warning for a first violation up to $1,500 for every 30 days of non-compliance for repeated violations.

Inquiries into the criminal background of job applicants has, for many years, been restricted by Title VII and the Illinois Human Rights Act, which generally hold that consideration given to criminal conviction records must be job related and consistent with business necessity.  Those rules will still apply to all inquiries made after an applicant has been selected for an interview or given a conditional offer of employment.  With this new legislation, Illinois joins a growing list of five states with similar laws.  

If you have any questions about this, or any other employment related matter, please contact Mark Schuver or any of the Employment Law attorneys of Mathis, Marifian & Richter, Ltd.

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