Illinois Employers Now Prohibited from Inquiring into the Criminal History of an Applicant Until After They Are Deemed Qualified and Selected for an Interview

The New Year in Illinois will bring several changes to Illinois law, including some significant changes with respect to the pre-employment criminal background screening of applicants by prospective employers. As we covered in a previous blog post, an employer is already prohibited from inquiring into or considering the fact that an applicant was arrested or had an expunged criminal history as a basis for most employment decisions.

However, on January 1, 2015, the Job Opportunities for Qualified Applicants Act becomes law in Illinois. The Act prohibits employers from inquiring into the criminal history of an applicant until the applicant has been determined qualified for the position, selected for an interview, or if there is no interview, until a conditional offer of employment is made to the applicant. The Act has several specific exceptions for when it is acceptable to inquire into an applicant’s criminal background prior to an interview or offer of employment, which include employers that are required by state or federal law to exclude certain applicants with criminal convictions, or employers who hire individuals under the Emergency Medical Services Systems Act. The Act applies to every private sector employer (and their agents) that employs fifteen or more employees in Illinois in the current or preceding calendar year.

The Illinois Department of Labor will enforce the Act. The Act tasks the Department of Labor to investigate any alleged violations of the Act and impose civil penalties of those employers found to be in violation of the law. Penalties for violation of the Act range from a written warning for a first violation to fines of up to $1,500 for every thirty (30) days that a violation is not brought into compliance with the Act.

The Act does not prohibit an employer from disqualifying applicants based upon criminal convictions. It simply addresses the timing with which an employer may inquire into an applicant’s criminal conviction background. Therefore, the biggest practical change most employers will need to make will be to change their job application and pre-employment screening to eliminate any request for a prior criminal conviction.

Image by Kathryn Decker licensed under CC BY 2.0