Illinois Senate Bill (SB) 1480 was signed by Governor Pritzker on March 23rd 2021 which amends the Illinois Human Rights Act with the addition of section 103.1.
This amendment places additional responsibilities (arguably restrictions) on employers when using criminal conviction information as part of a hiring decision.
It’s not a fun filled read but should be reviewed in full by any Illinois company using background checks as part of their employment screening process. To make it a little more palatable of a read, we’ve boiled it down to the bullet point version below. Please note, this summary is provided as information only and should not be regarded as legal advice.
Section 103 of the Illinois Human Rights Act (“IHRA”) Summarized
Part 1: Deliberation.
This can be thought of as the decision-making process. Does the criminal conviction(s) have enough of a relationship to the job at hand to conclude a probable risk to people or property?
The employer must NOT take adverse action (deny employment) based on a criminal conviction unless…
1) There is a SUBSTANTIAL RELATIONSHIP between the criminal offense/s and the position sought.
2) The granting of employment would involve unreasonable risk to property or safety of individuals.
The employer must consider…
1) Does the position offer opportunity for the same or similar offense to occur?
2) This is a tricky one! If the circumstances that lead to the conduct related to the conviction will recur in the employment position.
And then, to dive a little deeper into the decision matrix…
In making the above determinations, the employer must consider the following…
1) Length of time since the conviction.
2) Number of convictions that appear on the criminal history report.
3) Nature and severity of the conviction and its relationship to the safety and security of others.
4) The facts and circumstances surrounding the conviction.
5) The age of the candidate at the time of the conviction.
6) Evidence of rehabilitation efforts.
Part 2: Pre-adverse action.
These are the steps that must be taken…If, after taking all the above criteria into consideration, determines that conviction(s) are disqualifying. The employer must:
1) Include a notice of the disqualifying conviction(s) that are the basis for the preliminary decision and the employers reasoning for the disqualification. (Now easily added directly to the pre-adverse action notice via a pop-up prompt when an Illinois address exists for the client or the applicant.)
2) Provide a copy of the conviction(s) history report (criminal record check) (Automatically takes place with each pre-adverse action notification.)
3) Provide an explanation of the applicant’s right to respond before the final action is taken. This includes:
- Applicant’s may submit evidence challenging the accuracy of the conviction record(s) or evidence of reform. (Standard part of federal FCRA compliance)
- The potential employer must allow the candidate FIVE DAYS to respond prior to issuing the final Adverse Action notification (withdrawal of offer). (Standard part of federal FCRA compliance)
- The potential employer must consider any additional information submitted by the applicant regarding the conviction(s). (Standard part of federal FCRA compliance)
Part 3: Adverse action (final notice of adverse decision)
1) Potential employer must notify the candidate of:
- The disqualifying conviction(s) that are the basis for the final decision and reasoning behind the decision.
- Any existing process the potential employer has in place for challenging the decision.
- Their right to file a charge with the Illinois Department of Human Rights.
1) Review your criminal background check decision matrix or current process and determine if any are missing from the 103.1 for the locations in Illinois. (Part 1 in our summary)
2) Follow the prompts located in SafeScreener indicating that the disqualifying conviction(s) and reasoning for the decision must be provided on Illinois pre-adverse action.
3) Follow the prompts for additional information on the adverse action final decision notice to re-state the disqualifying conviction information, the reasoning behind the decision along with any existing procedure the employer has to challenge or gain reconsideration.
4) Make sure all decision-makers with access to the criminal record portion of the background check are aware of updates for the decision-making process and new requirements of the pre-adverse and adverse action notifications.
Brad Jones is the Founder and President of SafeScreener, a background screening agency that has been providing corporations and government agencies screening services since 2004. Brad is an active member of the National Association of Professional Background Screeners (NAPBS) and serves on the Chicago Chamber of Commerce’s Workplace Well-being Committee. For more information on applicant screening services or a free F.C.R.A. Compliance Checklist, please call 888.578.8600 x113 or email bjones(at)safescreener.com.