On March 23, 2021, Illinois Governor J.B. Pritzker signed Amended Senate Bill (SB) 1480 (the “Amendment”) into law. The Amendment restricts employers from relying on conviction records in making employment decisions unless there is a “substantial relationship” between one or more of the candidate’s prior convictions and the job in question, or the person being employed at the company would be an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
Employers will find that the Amendment adds various levels of complexity to the decision to hire employees with a conviction record AND mixes in a strong dose of ambiguity. For example, to determine whether a “substantial relationship” exists, employers are required to evaluate six factors set forth in the Act. Those factors are: how much time has passed since the conviction; the number of convictions; the nature of the conviction and the relationship to others’ safety and security; facts or circumstances surrounding the conviction; the age at time of conviction; and evidence of rehabilitation efforts. If an employer determines that such a relationship exists, it is required to engage in an interactive process comparable to what is required under the federal Fair Credit Reporting Act (“FCRA”).
As such, employers should document a well-reasoned explanation for why a conviction is a disqualifying event in the hiring process. Unfortunately, however, the ambiguity of the SB 1480 and the lack of any case law interpreting the new law makes it difficult to predict exactly what might constitute a well-reasoned explanation that is satisfactory in the eyes of the courts. For example, while the “health and safety of our existing workforce” seems likely to be considered “a good reason,” until the regulators and courts provide more specific guidance to employers regarding specific examples of what kind of prior convictions might compromise the health and safety of an employer’s existing workforce in a given context or regarding what constitutes a “substantial relationship” in the hiring decision context, employers should contact a competent attorney to discuss strategic considerations on a case-by-case basis.