On March 23, 2021, Illinois Governor J.B. Pritzker signed into law Senate Bill 1480 (SB 1480), amending the Illinois Human Rights Act (IHRA). The new law, which went into effect immediately upon the governor’s signature, places additional requirements on employers’ use of criminal conviction records in employment decisions. While most Ban the Box and Fair Chance laws have an effective date several months after the governor’s signature, this new law was effective immediately, leaving employers scrambling to comply.
In pertinent part, the new law places several new requirements on employers around the Adverse Action process. The existing Illinois laws, which restrict employers from asking about criminal history, generally until after an interview, and prohibit employers from taking action against an applicant or employee based solely on the fact that the person has been arrested for a crime remain unchanged.
The new law amends the Illinois Human Rights Act to make it a civil rights violation to use a “conviction record” for employment purposes unless the employer can demonstrate one of the following:
(1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held (“substantial relationship” means a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position); or
(2) the granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
When evaluating criminal conviction records, the employer must consider the following, which is similar to EEOC Guidance:
• Length of time since conviction
• Number of convictions that appear on the conviction record
• Nature and severity of conviction and relationship of safety to others
• Facts/circumstances surrounding the conviction
• Age of the person at the time of the conviction
• Evidence of rehabilitation efforts
The new law also requires changes to both the Pre-Adverse and Adverse Action Notices as follows:
Pre-Adverse Action Notice
In addition to the federal FCRA requirements, the Illinois Pre-Adverse Action Notice must also include:
• The disqualifying conviction(s)
• The reason for the disqualification
• Explanation of the applicant or employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final. The explanation shall inform the applicant or employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence of mitigation, such as rehabilitation
Waiting Period
The new law requires employers to allow the applicant or employee five (5) days to respond to the Pre-Adverse Action Notice before making their final decision. If the applicant provides additional information during this time, the employer must consider it before making their final decision.
Adverse Action Notice
In addition to the federal FCRA requirements, the Illinois Adverse Action Notice must also include
• The disqualifying conviction(s) (again)
• The reason for the disqualification (again)
• Any procedures for reconsideration (if any)
• Notice that the person has the right to file a charge of discrimination with the Illinois Department of Human Rights
If you are using the Frasco Profiles Adverse Action online tool, please know that we have updated our Illinois Pre-Adverse Action and Adverse Action Notices to include everything above. We have added a manual step to our process in which we will contact you to provide your reason for disqualification and your procedure for reconsideration (if any) prior to sending the Pre-Adverse Action Notice on your behalf at your direction.
For additional information, please contact Customer Service at (800) 820-9029.
IMPORTANT NOTICE: This update is provided for informational purposes only and is based on current practice, industry related knowledge and business expertise. Frasco Profiles is not a law firm and is not providing legal advice. The information provided in this update shall not be construed as legal advice, express or implied, and employers are strongly urged to speak with an attorney regarding their own circumstances and practices before implementing any of the recommendations contained herein.
