On March 23, 2021, Governor Pritzker signed an amendment to the Human Rights Act regarding requirements to the Adverse Action process that are an addition to the FCRA if you choose to not hire an applicant due to information on their background check.
1. Adverse Action Requirements
If an employee has a criminal record, an Illinois employer cannot take adverse action based on that record unless (1) there is a substantial relationship between the prior criminal offense and the employment sought or held, or (2) granting or continuing employment would involve an unreasonable risk to property or to the safety of specific individuals or the general public.
Prior to concluding that there is a “substantial relationship”, an employer must consider two things: (1) whether the position offers the opportunity to commit the same or a similar offense, and (2) whether the circumstances leading to the conduct that the person was convicted to will recur in the new/current employment position. In order to determine if a “substantial relationship” exists, the employer should consider the following factors:
- the length of time since the conviction;
- the number of convictions on his/her record;
- the nature and severity of the conviction and its relationship to the safety and security of others;
- the facts and circumstances surrounding the conviction;
- the age of the employee at the time of the conviction; and
- any evidence of rehabilitation.
2. Pre-Adverse Action Notice Requirements
After an employer determines that the conviction disqualifies the employee for the position, the employer must follow new pre-adverse action notice requirements that are in addition to the Fair Credit Reporting Act (“FCRA”) notice requirements. This new notice to the employee must include:
- notice of the disqualifying conviction(s) that are the basis for the decision and the employer’s reason for disqualification;
- a copy of the conviction history report (if one exists); and
- an explanation of the employee’s right to respond to the notice before the decision becomes final.
The notice must inform employees that their response may include, but is not limited to, the following: submission of evidence challenging the accuracy of the conviction record, or evidence of mitigation including rehabilitation. The employer must provide the individual at least five business days to respond and must consider any response before such decision becomes final.
3. Post-Adverse Action Notice Requirements
The new law also adds a post-adverse action notice requirement. Following any final decision disqualifying an employee, the employer must notify the employee, in writing, of the following:
- the disqualifying conviction(s) that are the basis for the final decision and the employer’s reasoning for disqualification;
- any existing procedure for the employee to challenge the decision or request reconsideration; and
- that the employee has a right to file a charge with the Illinois Department of Human Rights.
Consistency is important in making this determination for every applicant that has a criminal record. It is advised to consult with your legal team when implementing these changes regarding your hiring policies.