New Requirements For Illinois Employers: Criminal Records, Equal Pay Certifications And Workforce Data – Employment and HR

New Requirements For Illinois Employers: Criminal Records, Equal Pay Certifications And Workforce Data – Employment and HR

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Illinois Governor J.B. Pritzker recently signed into law Senate
Bill 1480 (Illinois Public Act 101-0656), which took effect
immediately. In three important respects, the Bill introduced new
requirements for Illinois employers. First, the law amends the
Illinois Human Rights Act to impose immediate restrictions on
employers who seek to consider criminal convictions when making
employment decisions. Second, the law amends the Illinois Equal Pay
Act to establish equal pay certification procedures for private
employers with more than 100 employees in Illinois. Third, the law
amends the Illinois Business Corporation Act to mandate that
certain employers report workforce demographic data for publication
by the Illinois Secretary of State. Illinois employers should
evaluate and update their employment policies and decision-making
processes to ensure compliance with these enactments.

Below, we provide an overview of key components of this
legislation as well as recommended steps for employers to comply
with these new requirements.

1. Restrictions on an Employer’s Use of Criminal Conviction
Records

Overview. As amended by Senate Bill
1480, the Illinois Human Rights Act (IHRA), 775 ILCS 5, now makes
it more difficult for Illinois employers to base an adverse
employment decision on the criminal history of an applicant or
employee. Going beyond the IHRA’s existing, general prohibition
of the use of arrest records in employment decisions, an employer
now faces stringent limits on its ability to consider conviction
records. A “conviction record” is defined as any
“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.”1

Under the amendment, reliance by an employer on a conviction
record in hiring, firing, promoting or a variety of other
employment decisions is a civil rights violation, with three
specific exceptions.2 First, the amendment permits
reliance on conviction records where such reliance is
“authorized by law.”3 Second, an employer may
use a conviction record as a basis for its decision if a
“substantial relationship” exists between the conviction
and the employment position sought or held.4 A
substantial relationship means consideration of whether the
employment position will offer an opportunity for “the same or
a similar offense to occur” and whether the
“circumstances” that led to the conviction “will
recur in the employment position.”5 Third, an
employer may rely on a conviction record if employing or continuing
to employ the individual would pose an “unreasonable
risk” to property or to the safety or welfare of specific
individuals or the general public.6

In assessing whether the second and/or third exception
referenced above applies, an employer cannot reflexively reject the
applicant or employee. Instead, the IHRA now requires the employer
to consider the following mitigating factors before disqualifying
an employee based on a conviction record:

  • “the length of time since the conviction”;

  • “the number of convictions that appear on the conviction
    record”;

  • “the nature and severity of the conviction and its
    relationship to the safety and security of others”;

  • “the facts or circumstances surrounding the
    conviction”;

  • “the age of the employee at the time of the
    conviction”; and

  • “evidence of rehabilitation
    efforts.”7

The statute does not provide additional guidance, however, as to
how employers should prioritize or balance these various
factors.

In addition, the IHRA now includes notice requirements once an
employer has made an initial determination to disqualify an
applicant or employee based on a conviction. Specifically, an
employer must provide written notice of its reasoning to the
employee along with a copy of any conviction history report and
information on how the employee can challenge any of the grounds
for its decision. The applicant or employee then has five business
days to respond with evidence contesting the accuracy of the
information or other mitigating evidence, such as evidence of
rehabilitation. If the employer subsequently reaffirms its reliance
on the conviction record, it must provide the employee with a
second written notice that sets forth its reasoning, any existing
procedure the employer has for an employee to request
reconsideration and informs the applicant or employee of the right
to file a charge of discrimination with the Illinois Department of
Human Rights (IDHR).8

The IDHR has provided further details on the IHRA’s criminal
conviction record protections in a series of
Frequently Asked Questions.

Recommendations for Employers.
Employers who conduct criminal background checks on job applicants
or employees should exercise care and revisit their procedures if
they wish to continue conducting such background checks.
Specifically, employers should review and revise their policies and
procedures to ensure that they do not automatically or broadly
disqualify an applicant or employee based only on the existence of
a criminal conviction. Instead, an employer should implement a
robust process to determine whether one or more of the statutory
exceptions may permit the employer to consider a specific criminal
conviction for a particular job—i.e., the consideration is
authorized by law, the conviction is substantially related to the
job or the conviction poses an unreasonable safety or welfare risk
for the job—and whether any mitigating factors apply.
Employers should also build in time to accommodate the required
five-business-day period for an applicant or employee to respond to
a preliminary, adverse employment decision that is based on the
conviction record. Throughout their decision-making processes,
employers should document their interactive assessment with the
applicant or employee. Documenting that process, as well as the
employer’s business rationale for relying on the conviction
record, may strengthen the defenses to potential employment-related
claims by applicants or employees.

Footnotes

1 775 ILCS 5/1-103(G-5).

2 Adverse employment decisions include “refus[ing]
to hire, . . . segregat[ing], or . . . act[ing] with respect to
recruitment, hiring, promotion, renewal of employment, selection
for training or apprenticeship, discharge, discipline, tenure or
terms, privileges or conditions of employment.” 775 ILCS
5/2-103.1(A).

3 See 775 ILCS 5/2-103.1(A). For example, Section 19 of
the Federal Deposit Insurance Act prohibits financial institutions
from employing a person “convicted of any criminal offense
involving dishonesty or a breach of trust or money
laundering,” absent “prior written consent” of the
Federal Deposit Insurance Corporation. 12 U.S.C. § 1829(a)(1).
The IHRA amendment likely permits consideration of a conviction
record in such an instance.

4 775 ILCS 5/2-103.1(A)(1).

5 775 ILCS 5/2-103.1(A).

6 775 ILCS 5/2-103.1(A)(2).

7 775 ILCS 5/2-103.1(B).

8 775 ILCS 5/2-103.1(C)(3).

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