Recently, Gov. Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act. Commonly referred to as “ban the box” legislation, it prohibits Illinois employment agencies and private employers, with 15 or more employees, from prescreening applicants over a criminal record or history. Under the new law, which goes into effect on Jan. 1, 2015, employers and employment agencies cannot ask applicants to disclose information as to whether they have been convicted of a crime, or conduct a background check on applicants, during the initial application process. Employers and employment agencies are further required to change their application forms to remove any questions or boxes that ask the applicant about a criminal background.
Employers who are prohibited by state or federal law to hire an applicant with a specific type of conviction are allowed to ask whether an applicant has been convicted of that crime. If applicants would need to obtain a standard fidelity bond as part of their employment, the employer can ask them whether they have been convicted of crimes that would prevent their approval for such a bond. Additionally, Emergency Medical Services Systems Act employers are allowed to inquire about an applicant’s criminal history or conviction. Employers who fall under these conditions may inform applicants in writing that they are not eligible for employment due to policy or existing law.
Once applicants have been invited in for an interview or a position is officially offered to them, employers do have the right to inquire about whether they have a criminal background or conviction. Employers should examine their hiring processes to ensure that they comply with the new law and will face civil penalties from the Illinois Department of Labor if they violate the act. These penalties include the following:
- First violation – written warning and 30 days to correct the violation
- Second violation or failure to comply with the law from a first violation – civil penalty up to $500.
- Third violation or failure to comply with the law from a first violation within 60 days – civil penalty up to $1,500
- Additional violations or failure to comply with the law from a first violation within 90 days – additional civil penalties of $1,500 each 30 days that the employer fails to comply
The Illinois Department of Labor also has the right to file a civil action against employers in order to collect these penalties. It is expected that under the new law, applicants in Illinois who have a criminal history or record, will have a better chance to find employment and employers will have more qualified applicants to select from.