New Law to Prohibit Workplace Discrimination from Criminal Background Checks

In 2015, a new Illinois law affecting job applicants with a criminal history went into effect throughout the state. The Job Opportunities for Qualified Applicants Act restricts the timing of requests for criminal conviction details when assessing a job applicant during the hiring process.

 

Federal laws also play a significant role when it comes to utilizing criminal background checks to disqualify a job applicant in a manner that is discriminatory. If employers use criminal conviction information in a discriminatory way, it is a violation of federal civil rights laws.

 

What types of employers are affected?

The aforementioned Illinois law applies to certain employers, but not all. Private employers with a staff of at least 15 employees as well as employment agencies fall under the jurisdiction of this law. The law, however, does not apply to employers in the public sector—public employers.

 

When may employers review criminal history?

Timing is key for employers who abide by the Illinois law. For instance, employers may only reserve the right to inquire into an applicant’s criminal history once the applicant is deemed qualified for the role and is notified of the forthcoming job interview.

 

Not all employers or employment agencies conduct interviews. In companies where interviews are not a prerequisite to being hired, an inquiry into a criminal history may only be pursued after a conditional job offer has been presented to the applicant.

How are criminal background checks conducted?

The Illinois State Police holds criminal records that potential employers may review. Online criminal databases also carry a wealth of information. Local court records may be searched when employers hire agencies to conduct investigations. Fingerprint checks through FBI databases may also be performed.

 

When can criminal history be considered?

Certain jobs require a clean record. These jobs rely on employees, such as those in healthcare professions, who can be trusted with the life and welfare of people. Laws require detailed background checks for doctors, nurses and other medical professionals.

 

Per state and federal laws, employees in education are subject to criminal background checks to ensure they are not a danger to children. Teachers, administrators and professors undergo extensive criminal background checks to preclude sex offenders and violent criminals from having access to young people.

 

Can employers ask about expunged records?

Upon presenting a conditional job offer to an applicant, an employer may conduct a criminal background check or inquire about criminal convictions. Illinois law, however, prevents employers from asking applicants about expunged or sealed records and those that failed to lead to a conviction.

 

Exceptions are made when it comes to employers’ lawful abilities to review sealed criminal records. Employers are entitled to review sealed records for certain high-risk positions. These roles include armed security guards, childcare workers, private detectives, social workers and locksmiths.

 

How are civil rights protected during hiring processes?

The percentage of incarceration and arrest rates is dramatically higher among underrepresented minority groups in the United States. When an employer disqualifies applicants from these minority groups based on their criminal records, the action may be viewed as race discrimination. This happens due to adverse impact. Basically, Adverse impact refers to employment practices that appear neutral but have a discriminatory effect on a protected group.

 

The Equal Opportunity Employment Commission (EEOC) protects the rights of applicants with a history of offenses, allowing them the chance to explain the nature of their wrongdoings as well as provide information that mitigates the nature of the crime (which sometimes results in reasons the applicant should not be disqualified).

 

The EEOC also outlines methodologies that allow employers to screen applicants with a criminal history—and whose records pose as a security risk—without engaging in discrimination. Some offenses are minor; when major, such offenses may lawfully disqualify the applicants from being hired.

 

Employers are required to consider the nature of the wrongdoing as well as the gravity of the misconduct. Hiring managers are also subject to reviewing the amount of time that has elapsed since the offender’s actual crime or sentence. Rehabilitation should be a consideration and could affect the outcome of a hiring decision.

 

Furthermore, by law, employers must consider the nature of the job. For instance, employers must evaluate how much supervision will be provided, the physical location of the job and the extent of interactions with other employees to which the offender is subject during work hours.

 

What must employers reveal to applicants?

The Fair Credit Reporting Act (FCRA) is a federal law that offers some protections for job applicants with criminal histories. Accuracy of crimes (such as incomplete details about dropped charges or misclassification of crimes) are addressed by the FCRA, for instance.

 

When employers request criminal background checks, they must request the applicant’s written consent prior to conducting the investigations. Upon disqualifying the applicant based on the content of a criminal history report, the employer must provide the applicant with a copy of the report.

 

Criminal background checks are utilized not only during the hiring process, but also when employees are being considered for promotion or reassignment. Laws at the federal, state and local levels, as mentioned, limit how and when details from these reports may be considered.

 

Navigating the complexities of the hiring process, especially when criminal background checks are integral to making employment decisions, is easier to handle with reliable HR consultants to back your company’s HR personnel. HRBOOST® is one such organization with 40 years of combined human resources experience.

 

HRBOOST® team members are invested in meeting your company’s objectives by first understanding them, then developing the most fitting HR solutions. We use a metric-based approach, holding monthly, quarterly and annual accountability meetings to ensure your company stays on track.

 

Major HR quandaries that interfere with company goals are identified, resulting in customized solutions provided by your assigned HRBOOST® team. HRBOOST® also works with your company’s existing HR infrastructure to attract quality talent, protect business assets and reduce employee turnover.

 

Internal HR departments are designed to maximize profits. Invest in human resources by teaming up with a qualified HR consultant, like HRBOOST®, to enhance your company’s operations and get the most out of its number one asset: its people. Chicagoland companies continually trust HRBOOST® to help them meet their bottom lines.