New Law Prohibits Asking About Job Applicant’s Criminal History
By Kateah M. McMasters
Beginning January 1, 2015, the Job Opportunities for Qualified Applicants Act (the “Act”), P.A. 98-774, prohibits employers from asking potential employees to “check a box” or to otherwise provide detailed information about his or her criminal history on a job application.
The General Assembly’s purpose in passing the Act is “to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.”
Despite the Act’s prohibition, employers may notify applicants in writing that certain offenses will disqualify the applicant from ultimately securing employment due to Federal law, State law, or the employer’s policy. Further, the Act does permit employers to inquire about an applicant’s criminal history if the applicant is determined to be qualified for the position and selected for an interview or, if there is no interview, until after a conditional offer of employment has been made.
Importantly, the Act does not apply to positions where (i) an employer is required by federal or state law to exclude an applicant with certain criminal convictions; (ii) a standard fidelity bond or similar bond is required and an applicant would be disqualified from obtaining a bond because of one or more specific criminal convictions; and (iii) individuals are licensed under the Emergency Medical Services (EMS) Systems Act.
The Act does not provide applicants a private cause of action; instead, the Department of Labor enforces the Act. An employer’s first violation of the Act will result in a written warning giving the employer 30 days to remedy the violation. If the violation is not remedied within 30 days or a second violation occurs, the employer will be subject to a civil penalty of up to $500. If the first violation is not remedied within 60 days or a third violation occurs, the employer will be subject to a civil penalty of up to $1,500. A fourth or subsequent violation, and any violation persisting for more than 90 days, is subject to a civil penalty of up to $1,500 for every 30 days of noncompliance.
It is important to note the Act defines an “employer” as “any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person.” It appears from the plain language of the Act that it does not apply to public bodies such as school districts and municipalities. However, the Department of Labor (DOL) has not provided a definition of the terms “person” and “private entity,” thus it is unclear whether the Act does in fact apply to public bodies. Until the DOL provides clarification, public bodies should consult with legal counsel to ensure their hiring process conforms with the Act’s requirements.