Employers with Employees in Chicago, IL
April 24, 2023
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The City of Chicago, Illinois, recently amended its “Ban-the-Box” ordinance in several significant ways, including to (1) create an individualized assessment requirement; (2) require a pre-adverse and final adverse action notice when employers are assessing criminal records; and (3) require additional language in an adverse action notice.
The new amendments largely follow suit with the State of Illinois, which supplemented the Illinois Job Opportunities for Qualified Applicants Act (JOQAA) requirements in mid-2021. Under Chicago’s ordinance, an employer may not use a conviction record as a basis to refuse to hire, renew employment, select for training, or otherwise discharge, discipline or alter the privileges or conditions of an employee’s employment unless (1) there is a “substantial relationship” between the individual’s criminal offense(s) and the job sought; or (2) the employer believes that the individual poses an unreasonable risk to property or the safety or welfare of specific individuals or the general public.
The recent amendment to the ordinance requires an individualized assessment when evaluating whether an employment decision can be based on a conviction record. In doing so, the amended ordinance lists six factors for the employer to consider: (1) the length of time since conviction; (2) the number of convictions that appear on the individual’s conviction record; (3) the nature and severity of the conviction and its relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the age of the employee at the time of the conviction; and (6) evidence of rehabilitation efforts.
If the employer makes a preliminary determination that an individual’s conviction history may result in adverse employment action, under the amended ordinance, the employer must provide a written pre-adverse action notice to the individual that outlines the following information: (1) notice of the disqualifying conviction(s) or anything else in the conviction record that serves as the basis for the preliminary determination and the employer’s reasoning for the disqualification; (2) a copy of the conviction record, if any; and (3) an explanation of the individual’s right to respond to the determination before it becomes final. Following issuance of the pre-adverse notice, the employer must provide the individual with at least five (5) business days to respond before finalizing the decision.
Following the five business days, if the employer makes a final determination to disqualify or take other adverse action because of the individual’s conviction history, the employer must provide the individual with notice of the decision in writing. This final adverse action notice must include: (1) notice of the disqualifying conviction(s) or anything else in the conviction record that serves as the basis for the final determination and the employer’s reasoning for the disqualification; (2) any procedure the employer maintains where the individual may challenge the decision; and (3) information regarding the individual’s right to file a charge with the Chicago Commission on Human Relations (CCHR).
- Update background screening procedures for compliance, including conducting an individualized assessment.
- Implement written pre-adverse and adverse notices for use the background screen process.
- Have appropriate personnel trained on background screening requirements.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase