On July 19, 2014, Illinois became the latest state to adopt a “ban the box” law. To date, 13 states and nearly 70 cities and counties have now taken the step to remove longstanding barriers to employment in their hiring policies by adopting laws that focus on ending discrimination against people with conviction and arrest histories. These laws are commonly known as “ban the box” because they eliminate the small box that would be checked on an employment application to indicate prior arrests or convictions. Illinois’ version of the law, which goes into effect January 15, 2015, prohibits certain private employers from inquiring into a prospective employee’s criminal arrest or conviction record on the application as well as any time before an interview is offered or a conditional offer of work is made.
“Ban the box” laws are driven in response to the growing view that giving employers early access to the criminal history of their applicants can automatically exclude a large number of candidates. As nearly one in three Americans has a criminal history record, the number of individuals who may be denied employment for which they are otherwise qualified is significant. “Ban the box” laws aim to ensure that companies assess job candidates on their skills and abilities at the forefront, rather than being swayed by incidents in their past that may have no bearing on their ability to perform the job. “Ban the box” laws do not forbid asking questions about criminal history altogether; rather, they are designed to push such inquiries further back into the hiring process and/or provide restrictions on what employers may do with that information, once obtained.
Federally, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed removing the conviction question from the job application as a best practice in its 2012 “Enforcement Guidance for Consideration of Arrests and Conviction Records in Employment Decisions.” Since then, policymakers have adopted “ban the box” laws as part of a more comprehensive effort to increase public safety and economic vitality. To date, there are a total of thirteen states that have adopted “ban the box” reforms including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, and Rhode Island. Some states have modeled the EEOC guidance, which requires the employer to demonstrate that any conviction records are directly related to the job and that applicants are individually assessed for a position. Some states prohibit employers from inquiring about an applicant’s conviction records until he or she has been selected for the position. Illinois, along with five other states, disallow the conviction history question on job applications. Further, Illinois also prevents conviction inquiries from being made prior to an interview or conditional offer of work.
Before the “ban the box” law was enacted in Illinois, employers could not inquire into a prospective employee’s arrest record on a job application. While this increased the pool of qualified applicants being considered, many applicants still experienced barriers to attaining employment because employers could ask about an applicant’s prior convictions on the application. The Illinois “ban the box” law now prevents private employers and employment agencies from inquiring into applicants criminal arrest record and conviction record prior to an interview or conditional offer of work.
Illinois’ 2014 “Job Opportunities for Qualified Applicants Act” (“Act”) applies to employers with 15 or more employees and employment agencies. It provides that covered entities “may not inquire into an applicant’s criminal arrest or conviction record until the applicant has been determined qualified for the position and either has been selected for an interview by the employer or, if there is no interview, has been made a conditional offer of employment.”
Importantly, the restrictions of the Act do not apply to positions where an employer is required to exclude from employment, applicants with certain convictions due to federal or state law. For example, in many highly
regulated positions, such as a Transportation Security Administration (TSA) screener, the employer is required to disqualify those applicants with certain convictions on their record because such convictions run afoul to the essential requirements of the job.
Moreover, even under federal or state law does not mandate the disqualification of applicants with criminal history records, employers still must be mindful of potential negligent hiring lawsuits. In such suits, an employer is held accountable if it should have known that an employee would engage in violent or dangerous behavior that injures others.
The Illinois statute allows for criminal history record inquiries to be made later in the hiring process; however, it does not expound on what employers should do with this information once obtained. (Importantly, we distinguish between history of criminal arrest versus history of criminal conviction. An arrest is not proof that the behavior occurred and has been shown to often be erroneous and discriminatory. Arrest records should be used very cautiously). If an Illinois employer chooses to obtain criminal conviction information later in the hiring process, it is critical to have a plan for what will be done with that information.
Here, the City of Chicago may provide some guidance. The City of Chicago has passed a law that requires that employers balance the nature and severity of the crime with other factors, such as the passage of time and evidence of rehabilitation. Recently, the Chicago Department of Human Resources issued guidelines imposing standards on all City agencies to take into account the age of the individual’s criminal record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors before making hiring decisions. Further, the City has taken steps to revise its job application to remove the question about criminal convictions and arrests and only requires that the applicant fill out a screening questionnaire card that requires disclosure of any criminal record after the City makes a conditional offer of employment. The prudent employer should be able to demonstrate that the new information obtained about the applicant’s criminal record would make them unqualified for the position they applied for and ensure that the decision is not discriminatory. This will prevent misuse of the information that would violate the spirit of the ‘ban the box’ law.
Impact on Employers
All Illinois employers need to need to remove any question regarding arrest or conviction history from all job applications on or before January 15, 2015 to comply with this law. For Illinois employers who decide to obtain criminal conviction information later in the hiring process, we recommend the following actions also be taken:
- Identify which jobs, if any, will require a criminal background check or inquiry into criminal history. To do so, you will need to ensure that accurate job descriptions exist. This will enable you to determine if there is a relationship between the job and criminal conviction.
- For those jobs where a relationship exists, establish a framework to provide guidance on the appropriate balance of the factors when considering a conviction. These factors can include, but are not limited to, nature and seriousness of crime, passage of time, and/or evidence of rehabilitation.
- Create a screening questionnaire card to obtain disclosure of any criminal conviction for applicants to fill out after an interview or conditional offer of employment is made.
- Create a centralized team to make decisions about when criminal convictions will disqualify an otherwise qualified candidate. This team should include the individuals responsible for the job description development process and decision makers involved in the hiring process.
- Train the team and all interviewers to avoid making criminal conviction inquiries until after any job interview has been completed or until a conditional offer of work is made.
- Train the team and all interviewers that they should not consider information about an applicant’s arrest or conviction history, even if the applicant volunteers the information.
If you have any questions about the new “ban the box” law, please contact Vanessa L. Smith, Esq. or another of Vantage Legal’s attorneys at 312.440.0602.
The information contained in this publication is for informational purposes only and not for the purpose of providing legal advice. Use of this information does not create an attorney-client relationship. For advice about a particular problem or situation, please contact an advisor of your choice. This publication is not intended to solicit legal business; however, it may be considered attorney advertising in some states. For more information, please contact Vanessa L. Smith, Esq., Managing Counsel, Vantage Legal, P.C., 430 West Erie St, Suite 303, Chicago, Illinois 60654.