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Employment & Labor Law FLASHPOINTS April 2021

Catherine R. Locallo, Robbins Schwartz, Chicago
312-332-7760 | E-mail Catherine R. Locallo

New Limits on Criminal Convictions in Employment Decisions, Mandatory “Interactive Assessment” Process

On March 23, 2021, the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101, et seq., was amended to make it a civil rights violation for an “employer” to use a “conviction record” as a basis to disqualify an individual for employment (i.e., hire, promotion, renewal, training, discipline, tenure, etc.) with few exceptions. P.A. 101-656 (eff. Mar. 23, 2021). This article will address the exceptions and the new mandatory “interactive assessment” process to be followed when considering a conviction record.

For purposes of the IHRA, an “employer” is defined as

(a) Any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation;

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(c) The State and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees;

(d) Any party to a public contract without regard to the number of employees;

(e) A joint apprenticeship or training committee without regard to the number of employees. 775 ILCS 5/2-101(B)(1)(a), 5/2-101(B)(1)(c) through 5/2-101(B)(1)(e).

A “conviction record” means “information indicating that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.” 775 ILCS 5/1-103(G-5).

The three exceptions to a civil rights violation include when (1) authorized by law to disqualify the individual from an employment opportunity because of the conviction record; (2) there is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; and (3) the granting or continuation of the employment would involve an “unreasonable risk” to property or to the safety or welfare of specific individuals or the public. 775 ILCS 5/2-103.1(A).

The phrase “substantial relationship” is defined in the new law as “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” Id. There is no similar definition for “unreasonable risk,” but an FAQ published by the Illinois Department of Human Rights (IDHR) states that “an employer must assess the risk that the employee poses to the workplace in the particular position and determine whether the risk is unreasonable under the circumstances.” Illinois Department of Human Rights, Conviction Record Protection — Frequently Asked Questions, p. 9.

In deciding about possible disqualification based on a conviction record, an employer is required to consider six factors:

  1. length of time since the conviction;

  2. number of convictions on the record;

  3. nature and severity of the conviction and its relationship for the safety and security of others;

  4. facts and circumstances surrounding the conviction (which may not be known from the conviction record);

  5. age of the applicant/employee at the time of the conviction; and

  6. evidence of rehabilitation efforts (which may not be known from the conviction record). 775 ILCS 5/2-103.1(B).

If an employer makes a preliminary decision that the applicant/employee’s conviction record disqualifies the individual from the employment opportunity after assessing the above factors, the employer must engage in an “interactive assessment” with the individual. The “interactive assessment” begins with the employer providing a first written notice to the applicant/employee of the preliminary decision and providing the individual at least five business days to respond before the decision becomes final. The written notice shall also include notice of the disqualifying conviction(s), the employer’s reasoning for the disqualification, a copy of the conviction history report, and an explanation that the individual’s response may include evidence disputing the accuracy of the conviction record or evidence of mitigation, such as rehabilitation. 775 ILCS 5/2-103.1(C)(1).

The “interactive assessment” continues with the employer considering any information submitted by the individual before making a final decision. If the final decision is to disqualify the individual or otherwise take an adverse action based solely or in part on the conviction record, a second written notice must be issued by the employer which includes notice of the conviction(s) that are the basis for the final decision and the employer’s reasoning for disqualification, any existing procedure the employer has for the individual to challenge the decision or request reconsideration, and notice of the right to file a charge with the IDHR. 775 ILCS 5/2-103.1(C)(3).

Note that while the law does not appear to require an employer to establish a procedure for the individual to challenge the final decision or require reconsideration, it makes clear that failure to engage in the “interactive assessment” may result in liability for committing a civil rights violation under the IHRA, as well as failing to issue the preliminary and final notice. Refer to Conviction Record Protection — Frequently Asked Questions, supra.

In view of this new law, which took effect on March 23, 2021, employers should

  1. review their policies and procedures (internal or otherwise) relative to recruitment, hiring, promotions, renewal of employment, etc., and update as may be necessary to comply with this new law;

  2. consider whether to establish a procedure allowing an individual to challenge or request reconsideration of a final decision to disqualify (While not required, it could make a difference when defending a charge before the IDHR.);

  3. designate one or more qualified individuals to be responsible for reviewing “conviction records” and making the preliminary and final decisions and provide training for compliance with this new law to those individuals;

  4. create a checklist to ensure that the six factors are considered in making the preliminary and final decision about disqualification (Document the process.);

  5. create model fillable forms that include the basic information to be included in a preliminary or final decision about disqualification (The disqualifying conviction(s), employer’s reasoning for same, and time frame for response will be unique to each situation. Include a statement that failure to timely respond will result in issuance of a final notice of disqualification. Issue the notice by multiple delivery methods (i.e., e-mail if an e-mail address was provided and mail). Consider options to track delivery.);

  6. given the timing of when criminal history background checks are completed and the requirements of this new law, be prepared that it may take additional time to fill a position; and

  7. consult with legal counsel at least prior to issuing a final decision.

For more information about employment and labor law, see BUSINESS LAW: MISCELLANEOUS OPERATING ISSUES (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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