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On July 19, 2014, Illinois Governor Pat Quinn approved the “Job Opportunities for Qualified Applicants Act” which prohibits private employers with fifteen or more employees, and employment agencies, from inquiring about or into, considering, or requiring disclosure of an applicant’s criminal history until an applicant: (1) has been determined to be qualified for the applied-for position and has been notified that he or she has been selected for an interview, or (2) has been given a conditional job offer. The law goes into effect on January 1, 2015.

Applicant is defined as any person pursuing employment with an employer or with or through an employment agency. Employer is defined as any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person. An employment agency is 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 and includes an agent of such a person.  Employment means any occupation or vocation.  Thus, it does not appear that the retention of independent contractors is covered by this Act.

Under the Act, an employer or employment agency 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 determined 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 by the employer or employment agency. The restrictions do not apply for positions where:

(1)      employers are required to exclude applicants with certain criminal convictions from employment due to Federal or State law;

(2)      a standard fidelity bond or an equivalent bond is required and an applicant's conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond, in which case an employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses; or

(3)      employers employing individuals licensed under the Emergency Medical Services (EMS) Systems Act.

The Act does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to Federal or State law or the employer's policy.

The Illinois Department of Labor is empowered to investigate violations of the Act.  If the Department finds that a violation has occurred, the Director of Labor may impose the following civil penalties:

(1)      For the first violation, the Director shall issue a written warning to the employer or employment agency that includes notice regarding penalties for subsequent violations and the employer shall have 30 days to remedy the violation;

(2)      For the second violation, or if the first violation is not remedied within 30 days of notice by the Department, the Director may impose a civil penalty of up to $500;

(3)      For the third violation, or if the first violation is not remedied within 60 days of notice by the Department, the Director may impose an additional civil penalty of up to $1,500;

(4)      For subsequent violations, or if the first violation is not remedied within 90 days of notice by the Department, the Director may impose an additional civil penalty of up to $1,500 for every 30 days that passes thereafter without compliance.

The Department is also empowered to adopt rules necessary to administer this Act and may establish an administrative procedure to adjudicate claims and issue final and binding decisions subject to the Administrative Review Law.

Illinois joins an increasing number of states with some form of “ban the box” or “fair chance” policies to help citizens with criminal histories find employment. According to an April 2014 report by the National Employment Law Project, four other states have similar laws covering private employers. More than a dozen other states and many cities and counties have passed or are considering similar measures.

Employers are cautioned to note, however, that the Illinois Human Rights Act prohibits use of the fact of an arrest or expunged criminal history record information in making employment decisions, including hiring. Further, the Equal Employment Opportunity Commission (EEOC) has focused on the consideration of criminal history in employment decisions in recent years. Johnson & Bell’s prior article, on the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions should be heeded by employers using or considering the use of conviction records in making employment decisions.

Illinois employers are encouraged to review their hiring policies and written applications to ensure compliance with the new law before January 1, 2015.

For more information, please contact Joseph Spitzzeri, Co-Chair of Johnson & Bell's Employment group.

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