Illinois: New Criminal History Check Requirements for Employers

SB 1480 amends the Illinois Human Rights Act (IHRA) to impose additional requirements on employers who perform criminal history checks on employees. The new provisions require employers to follow an interactive adverse action procedure before making any employment decisions based on an individuals’ criminal history or conviction record.

1. Perform an interactive, individualized assessment: First, the employer must conduct an individualized assessment that considers possible mitigating factors, including:
   • Length of time since conviction;
   • Age of the employee at the time of conviction;
   • Number of convictions that appear on the record;
   • Nature and severity of the convictions, and its relationship to the safety/security of other individuals;
   • Facts or circumstances surrounding the conviction; and
   • Evidence of rehabilitation efforts.

After considering these factors, an employer may decide to take adverse action only if they can demonstrate (1) a “substantial relationship” between the criminal offense and the job sought or currently held; or (2) if the employer believes the individual poses an “unreasonable risk” to the property and safety of the employer and its workforce, customers, or members of the public.

2. Provide notification of adverse action: The employer must notify the individual that the criminal conviction is the basis for the adverse action decision, provide a copy of the criminal history report, and give the individual at least five days to respond.  The individual may provide information challenging the accuracy of the conviction or mitigating evidence.
3. Inform individuals of their right to file a charge: In addition to the adverse action notification process, employers must also provide (1) the employer’s reasoning for the disqualification, and (2) a statement that the individual has the right to file a charge with the Illinois Department of Human Rights.

Action Items