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Illinois Enacts Law Impacting Criminal Background Inquiries

Margherita M. Albarello

The Job Opportunities for Qualified Applicants Act is effective January 1, 2015, and applies to Illinois private employers and employment agencies with 15 or more employees. It restricts the timing of pre-employment inquiries by employers about an applicant’s criminal past. Employers still can conduct background checks or inquire about criminal convictions; the law only affects when they do so.

The law is called a “ban the box” law because it removes the “box” asking about criminal history information from a job application. The public policy behind the law is the belief that employers should judge applicants on their qualifications first, without the stigma of a record, and that putting people back to work is good for the economy and reduces recidivism. The most effective policies don’t just remove the “box” – they ensure that background checks are used fairly, that the employer makes individualized assessments instead of blanket exclusions, and that the employer considers the age of the offence and its relevance to the job.

The employer can inquire about, consider, and require disclosure of the applicant’s criminal record or history after he has been deemed qualified for the position and notified that he has been selected for an interview. If the employer does not conduct interviews, the inquiry cannot take place until after a conditional offer of employment has been made to the applicant

The law exempts certain positions from coverage, including where a federal or state law excludes applicants with certain criminal convictions from working in the position sought; the position requires a standard fidelity bond or equivalent and the conviction would preclude the applicant from obtaining the bond; or the employer employs individuals licensed under the Emergency Medical Services Systems Act. Employers may provide applicants advance notice of specific offenses that would disqualify the applicant under state or federal law.

The Illinois Department of Labor is empowered to investigate violations and impose civil penalties for violations of the law. Multiple violations and failures to remedy violations can lead to heightened or additional penalties.

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