Illinois Amendment to “Ban the Box” Law Would Impact Employers in their Use of Criminal Records

Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

In January 2021, the Illinois legislature passed Senate Bill 1480 (SB 1480) to amend the Illinois Human Rights Act (IHRA) that would impact employers under the state’s “Ban the Box” law that prevents employers from asking job applicants about criminal histories on applications. The bill was sent to Governor J.B. Pritzker to sign into law.

SB 1480 would make using conviction records in employment-related decisions a civil rights violation unless there is a “substantial relationship” between the criminal offense and the position or involve an “unreasonable risk” to property or the safety of individuals or the general public. Employers would be required to consider these factors:

  • The length of time since the conviction;
  • The number of convictions that appear on the conviction record;
  • The nature and severity of the conviction and its relationship to the safety and security of others;
  • The facts or circumstances surrounding the conviction;
  • The age of the employee at the time of the conviction; and
  • Evidence of rehabilitation efforts.

SB 1480 would require an employer wanting to apply one of the two exceptions to notify employees or applicants in writing with a copy of the conviction report and give them five days to submit information to convince the employer not to take the adverse action. The employer can make a final decision only after the five-day window.

If proceeding with adverse action, the employer must issue the employee or applicant another notice that explains the basis for the decision, advises of any internal procedures for requesting reconsideration, and notifies them of their right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).

SB 1480 – which would take effect immediately upon Governor Pritzker’s signature – defines “substantial relationship” as a consideration of whether the job offers the opportunity for the same or a similar offense to occur and whether the employment circumstances are likely to result in a recurrence of the criminal conduct.

Illinois was one of the first states to enact a Ban the Box law. In January 2015, the Job Opportunities for Qualified Applicants Act (HB 5701) took effect after being signed by Governor Pat Quinn to help ex-offenders find work in the private sector by preventing criminal background checks until after an applicant is deemed qualified for a job.

Ban the Box legislation started in 1998 with Hawaii being the first state to pass a law restricting employers from asking about a job candidate’s criminal record prior to a job offer. Since then, legislation has been enacted in 36 states and more than 150 municipalities, according to the National Employment Law Project (NELP).

Ban the Box laws and second chance programs that help allow ex-offenders with a prior criminal record an opportunity to find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.

Employment Screening Resources® (ESR) – which was ranked the #1 screening firm in 2020 by HRO Today – offers a white paper on “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce,” an “ESR Ban the Box Resource Guide,” and a Ban the Box Resource Page. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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