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New Illinois Legislation Requires Employers to Change Approaches to Past Convictions

April 27, 2021

Illinois recently passed a law affecting employers’ use of conviction records in making employment-related decisions. The new law amends the Illinois Human Rights Act (IHRA) to prohibit such use except in limited circumstances and creates new procedural obligations when considering conviction records. 

The IHRA now requires any employer who seeks to use a conviction record to disqualify an applicant or employee from employment or take any other adverse employment action to engage in an interactive assessment before making any decision. Employers may only take the adverse action if they conclude that (a) there is a “substantial relationship” between the conviction and the job position or (b) the conviction creates an “unreasonable risk” related to the job position.  Employers must consider the following factors regarding the conviction and surrounding circumstances when conducting the interactive assessment:

  • The length of time that has passed since the conviction;
  • The number of convictions that appear on the individual’s 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.

If the employer intends to rely on the conviction to deny a person employment, the employer must also comply with certain notice requirements. First, after making the preliminary decision, the employer must provide the individual with written notice of the basis for the disqualification decision.  The individual then has five business days to respond with evidence regarding the circumstances of the conviction.  Second, after the response period, if the employer intends to proceed with the adverse action, it must provide an additional written notice of the final decision and inform the individual of his or her right to file a charge with the Illinois Department of Human Rights.  If the employer is prohibited from hiring the individual due to another law prohibiting the hiring of persons with specific convictions, the employer must still notify the employee of the basis for their disqualification and give the employee five business days to respond with evidence disputing the accuracy of the conviction record. 

Illinois guidance on this topic is complex, and the new law represents a shift in the state’s approach to past convictions. If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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