It’s Hiring Season: Updates on Conviction Records and Disqualifying Candidates From Employment

This year, amendments were made to the Illinois Human Rights Act for the purpose of extending new protections to job applicants and employees with criminal convictions.  The amendments require employers to follow a particular process in reviewing criminal convictions with potential hires and employees.  Specifically, under the Act, unless otherwise authorized by law, it is now a civil rights violation for an employer to use a conviction record as a basis to take adverse employment action, including refusal to hire, unless (1) there is a “substantial relationship” between the previous criminal offenses and the employment sought or held, or (2) the employment would involve an “unreasonable risk” to property or the safety or welfare of specific individuals or the general public. In determining whether there is a substantial relationship between the criminal offense and the employment sought, or whether there is an unreasonable risk to property or the safety of individuals, the employer is required to consider mitigating factors, including the length of time since the conviction, the number of convictions, the nature and severity of the conviction including the relationship to the safety and security of others, the facts or circumstances surrounding the conviction, the age of the individual at the time of the conviction, and evidence of rehabilitation efforts.

If the employer preliminarily decides to disqualify an individual from employment because it believes a criminal conviction is substantially related to employment or poses an unreasonable risk, the Act requires the employer to participate in an “interactive assessment.” The interactive assessment requires the employer to give the individual notice of the disqualifying conviction(s) that is/are the basis of the preliminary decision, the employer’s reasoning for the disqualification, a copy of the conviction history report, and an explanation of the individual’s right to respond to the employer’s preliminary determination before that decision becomes final. Although not specifically stated in the Act, the interactive assessment would likely require an employer to meet with the individual to make some of the above determinations—e.g., the facts and circumstances surrounding the conviction.  Additionally, the individual must be given five business days to provide evidence that the conviction record that is the basis for the disqualification was false or to submit evidence of mitigation, such as rehabilitation. The information submitted by the individual to the employer must be considered before the employer makes a final decision to disqualify the individual from employment. Further, the employer is required to send a final notice to the individual including the disqualifying conviction, the employer’s reasoning for the disqualification, and the employer’s existing procedure to challenge the determination, and the right of the individual to file a charge with the Illinois Department of Human Rights (“IDHR”).

Under the Illinois School Code, school district employers continue to be prohibited by law from employing individuals convicted of certain criminal offenses.  Regarding convictions that serve to prohibit employment in certain fields, the Act appears to excuse employers from the entire interactive assessment process. However, a document published by the IDHR, labeled Conviction Record Protection—Frequently Asked Questions (FAQ), states that, in such circumstances, the employer must follow at least one of the interactive assessment steps.  Specifically, the employer must notify the individual of his/her employment disqualification pursuant to law and furnish the individual a copy of the conviction report.  The individual then has at least five business days to dispute the accuracy of the relevant conviction record law disqualifying their employment.  This step is very similar to the procedures under the Illinois Uniform Conviction Information Act, which already requires school districts (and other employers) to provide individuals with their conviction records and allows the individual seven working days to notify the school district if the information in the conviction record is inaccurate or incomplete. 

Although the Illinois Human Rights Act does not specifically prohibit employers from asking applicants to disclose conviction history on an employment application, the FAQ states that an applicant for employment cannot be required to disclose a conviction record prior to being made an offer of employment, which will effectively preclude most conviction inquiries on applications.   We note also that the new provisions in the Act cover the employment process and do not address the screening process for independent contractors or employees of school district contractors, but notice requirements to contractors or their employees regarding background check results may apply under other laws. 

Based on these new amendments, school districts should consult with legal counsel and carefully review their job applications, hiring practices/procedures, forms/letters, and applicable Board policies to ensure consistency and compliance.  

If you have questions about these changes, please contact Cindi DeCola, Tina Christofalos, or Mary Karagiannis, or any attorney in our Labor/Personnel practice group.

Hodges Loizzi attorneys Cindi DeCola, Tina Christofalos, Barb Erickson, Kerry Pipal, and Mary Karagiannis will discuss these changes and other key Labor/Personnel legislation updates impacting school leaders in the HR space in an upcoming webinar on Wednesday, July 28 at 12:00 pm CT.
Click here to register.

Source: P.A. 101-656