Illinois employers who use background or credit checks for employment purposes must be aware of three Illinois laws which govern that process. These laws limit the ability of employer to use background checks to eliminate job applicants, or terminate existing employees.
Job Opportunities for Qualified Applicants Act
This “law prevents employers from obtaining criminal background checks on applicants before they are deemed qualified for the job. With few exceptions, the law requires employers to select an applicant for an interview or to have provided the applicant with a conditional offer of employment before conducting a criminal background check on them.
Employee Background Fairness Act
This law prohibits employers from considering an applicant’s conviction record unless (a) there is a substantial relationship between the criminal offense and employment; or (b) allowing the applicant to be employed would provide an unreasonable risk to the property, safety, and welfare of the employer.
To determine if there is a substantial relationship between the criminal offense and the employment the following six factors must be considered: (1) the amount of time that has passed since the conviction, (2) how many convictions appear on record, (3) severity of the conviction in its relation to the safety of others, (4) circumstances of the conviction, (5) age of the applicant when they were convicted, and (6) evidence of rehabilitation.
The employer must inform the applicant if they have found disqualifying convictions, provide the applicant with a copy of the conviction history report, and provide an explanation of the employer’s decision before the decision becomes final. Applicants are allowed five business days to respond and challenge the accuracy of the decision or conviction record. An employer who decides to move forward with the disqualification must provide the applicant a notice of the decision, any procedures the employer has for challenge the decision, and the notice of their right to file a complaint with the Illinois Department of Human Rights.
Employee Credit Privacy Act
This law prohibits employers from refusing to hire an applicant based on their credit score unless their credit history is considered a “bone fide occupational requirement”. There are seven circumstances that can lead to this exemption:
- The employer is required by law to obtain bonding or other security for the individual in the position;
- The employee will have unsupervised access to cash or marketable assets valued over $2,500;
- The employee will have signatory power over business assets of $100 or more per transaction;
- The employee will have a managerial position that involves setting the direction or control of the business;
- The employee will have access to personal or confidential information, financial information, trade secrets, or state or national security information;
- The position meets criteria under any state or federal regulations that are designed to establish when credit history can be a bona fide occupational qualification; and/or
- State or federal law requires or exempts the employee’s credit history.
Navigating the maze of Illinois and federal employment laws can be tricky. Employers who are not entirely comfortable complying with these laws are wise to consult qualified legal counsel. If you have questions about employment laws or your business’ compliance policies, feel free to contact Joseph Messer at jmesser@messerstrickler.com or (312) 334-3440 for a free initial consultation.