Illinois locations vital restrictions on employers’ use of felony conviction historical past and establishes reporting necessities for the EEO | Epstein Becker & Inexperienced

Illinois recently enacted SB 1480 (or the “Act”) which, among other things, immediately increases the ability of Illinois employers to refuse to hire an applicant or to take negative action against a current employee based on the criminal conviction of the individual. significantly restricts recording. Effective January 1, 2023, the law will also require certain Illinois employers to submit essential information about the racial, ethnic, and gender makeup of their workforce to the Illinois Secretary of State.[1]

Extension of the “Ban the Box” law

SB 1480 (officially titled “The Employee Background Fairness Act”) sets the key restrictions on an Illinois employer’s reliance on criminal background controls since 2015 when the state passed the Illinois Human Rights Act (“IHRA”) “Prohibition of the Box” law. This law prohibits employers, with limited exceptions, from inquiring into or investigating an applicant’s criminal background until the applicant is notified that he or she is being interviewed or, in the absence of an interview, after the applicant is offered a conditional job had received.[2] While the Ban-the-Box Act restricts when an employer can conduct a criminal investigation, SB 1480 (which further changes the IHRA) restricts how an employer should consider a promotion when deciding whether to hire a candidate rejects or take other adverse action against a current employee.

Limitations on the use of criminal records by SB 1480

In particular, SB 1480 makes it a civil rights violation for any private employer to use an applicant or the current conviction of an employee[3] as a basis for refusing to hire the candidate, refusing promotion to the current employee, or taking other adverse employment measures against the person unless the employer is expressly authorized by law to do so (e.g., some laws prohibit employers from doing Recruiting individuals with specific criminal record, such as enrolled agents and associates for certain financial services employers administered by the Financial Industry Regulatory Authority or Securities and Exchange Commission, or fully compliant with the multi-step process established by law. This process includes the following steps:

Step 1: Link the belief and the job or point out the risk

In a preparatory step, unless an employer is legally empowered to take into account a person’s criminal history, an applicant or employee’s criminal record can only be taken into account if one of the following conditions is met:

  • There is a “substantial relationship” between one or more of the “previous offenses committed by the applicant or worker” and the job sought or held
  • Hiring the applicant or continuing the employment of the current worker “would pose an undue risk to the property or to the safety or welfare of certain individuals or the public.”

According to SB 1480, a “substantial relationship” means “a consideration of whether the employment position offers the possibility of the same or a similar crime to be committed and whether the circumstances leading to the conduct for which the individual has been convicted are in the employment position occur again. ” . In determining whether such a “material relationship” actually exists, SB 1480 instructs employers to consider the following factors:

  • How long has it been since the conviction (s) took place?
  • How many times has the person been convicted of a crime?
  • The “nature and gravity” of the conviction (s) and their “relationship to the safety of others”;
  • the “facts or circumstances” relating to the conviction, including the age of the person at the time of the conviction; and
  • Rehabilitation efforts of the applicant or employee.

If, after performing this analysis, the employer makes a “preliminary decision” that the individual’s conviction evidence disqualifies the applicant or employee, the employer moves to the second step in the process.

Step 2: Send notification of negative preliminary decision

This step requires that the employer inform the applicant or employee in writing of his “preliminary decision”.[4] The notification must contain everything the following information:

  • Identification of the disqualifying conviction (s) on which the employer relied in its preliminary decision and “Employer’s justification for the disqualification”;
  • a copy of a conviction report (if any); and
  • Disclosing the right of the applicant or worker to respond to the employer’s preliminary decision before it becomes final, and the right of the individual to respond in his response to “Evidence that questions the accuracy of the sentence record on which the disqualification is based , or include evidence of harm reduction such as rehabilitation. “

Step 3: Give the applicant / employee the opportunity to respond

The employer must allow the individual at least five working days to respond to the notification of his preliminary decision before making a final decision.

Step 4: make the final decision

The employer must consider any information provided by the applicant or employee in response to the preliminary decision notification before making a final decision. If after such consideration the employer makes a final decision, “solely or in part because of the [applicant or] Convincing the employee ”, the employer must then continue with the next step.

Step 5: Notification of a final negative decision

The employer must inform the applicant or employee of the following in writing:

  1. the specific disqualification conviction (s) containing the employer’s final decision and “the employer’s justification for the disqualification”,
  2. any existing corporate process that would allow the applicant or employee to “contest the decision or request a re-examination”, and
  3. the right of individuals to file charges with the Illinois Department of Human Rights.

What is the significance of the SB 1480?

In particular, New York City recently enacted a similar, albeit more stringent, measure that limits employers’ trust in criminal history in making employment decisions, suggesting that such an extension of the ban-the-box laws is part of a larger trend could be. SB 1480 is also similar to the “Enforcement Guidelines for Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act,” the guidelines of the US Equal Employment Opportunity Commission (“EEOC”), for which the US Court of Appeal has jurisdiction Fifth Circuit ruled in 2019 that the EEOC was not empowered to proclaim or enforce, but this could attract renewed attention under the Biden government.

Reporting on the composition of the workforce under the Business Corporation Act

Another provision of SB 1480 amends the Illinois Business Corporation Act (“IBCA”) to impose a reporting requirement on certain employers. Effective January 1, 2023, an Illinois corporation that files an annual report with the Illinois Secretary of State under the IBCA and an EEO-1 annual report with the EEOC under Title VII of the Civil Rights Act must file an additional annual report with the Secretary of State Illinois.

The newly required report must include a detailed statistical breakdown of the Company’s employees working in Illinois by race, ethnicity, and gender, as well as any other information listed in Section D of the EEO-1 report. Although Section D of the EEOC’s EEO-1 report will be essentially similar, there is one major exception: it will be made public.[5] Within 90 days of receiving the report, the Illinois Secretary of State will post the demographic snapshot of the employer’s workforce on their website.

The IBCA instructs the Foreign Minister to provide a sample report form for employers so employers should expect an updated report form in the near future.

What Illinois Employers Should Do Now

  • Immediately review whether and what revisions to the current Criminal Background Review Guidelines are required to ensure compliance with SB 1480 as the law is now in place.
  • Ensure recruiters and other employees involved in the hiring process, as well as human resources personnel performing promotions, side transfers, and the like, are trained in SB 1480 and any revised company policy as revised under the new law.
  • For employers who use third parties to conduct background checks in accordance with the Federal Act on Fair Credit Reporting (“FCRA”), note that the reporting requirements and other mandates of SB 1480 supposedly apply in addition to the requirements contained in the FCRA.
  • With regard to the new reporting requirement to amend the IBCA, insured employers should discuss the benefits and risks of conducting an EEO audit with a lawyer, taking into account that the newly required Illinois report will be published.

ENDNOTES

[1] Another provision of SB 1480 that changes the State Equal Pay Act to require certain employers to report on their pay practices is discussed in a separate Act Now Advisory, available here.

[2] The IHRA also prohibits an employer from engaging in negative employment action against an applicant or employee based solely on the fact that the individual has been arrested for a crime.

[3] A “conviction record” is defined as “information indicating that an individual has been convicted, suspended, fined, detained, or parole under a law enforcement or military authority for a crime, misdemeanor, or other criminal offense” .

[4] This notification requirement applies in addition to the requirements for employers under the Federal Act on Fair Credit Reporting with regard to notifications of adverse measures.

[5] Private employers with 100 or more employees (or with 50 or more employees and a government contract or subcontract of $ 50,000 or more) are required to file an EEO-1 report annually, which, among other things, includes a demographic analysis of the employer’s workforce by race and gender. This report is treated confidentially by the EEOC.

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