A new Illinois law, Senate Bill 1480 (“SB 1480”) is now in effect that (1) limits employers’ ability to consider criminal convictions in making hiring and employment decisions, and (2) imposes new procedural requirements before taking adverse employment actions relating to background checks. Here is a summary of what employers need to know:
*NEW* IL Background Check Limitations
SB 1480 bars employers from basing adverse employment decisions (e.g., denial of hire or termination) on a “conviction record,” unless the employer can show: (1) the conviction is substantially related to the person’s job, or (2) employing the person would pose an unreasonable safety risk. Notably, the law lists six factors employers must consider when evaluating the “substantial relationship” or risk to property or safety. These six factors pertain to the facts and circumstances surrounding the conviction (age, nature, seriousness) and evidence of rehabilitation efforts.
*NEW* IL Background Check Procedural Requirements
Under SB 1480, if an employer decides to disqualify a person from employment or take another adverse action based on a conviction, the employer must engage in an “interactive assessment” before taking action. These new requirements are similar to the federal Fair Credit Reporting Act (FCRA)’s pre-adverse action and adverse action letter process, but there are important differences.
- First, the employer must notify the employee or applicant of its preliminary decision in writing, including: (a) notice of the specific disqualifying offense and the employer’s reason for the disqualification; (b) a copy of the background check; and (c) an explanation of the employee’s right to respond before the decision becomes final.
- Second, the employee or applicant then must be provided at least five business days to respond before the employer moves forward. The employer must consider the information submitted by the employee before making a final decision.
- Third, if the employer makes a final decision to disqualify or take an adverse action, the employer must supply the employee or applicant the following in writing: (a) notice of the disqualifying offense and the employer’s reason for the disqualification; (b) any existing procedure for the person to request reconsideration; and (c) notice of the right to file a charge with the Illinois Department of Human Rights.
The requirements go well beyond the mandates of the FCRA. This means Illinois employers must immediately revise their Pre-Adverse and Adverse Action Notice
But wait, there is more. SB 1480 is shaking things up in other ways, including (1) requiring Illinois employers to certify compliance with equal pay laws, and (2) imposing new requirements for reporting workforce demographics to the state. We will cover these additional aspects of SB 1480 in Part 2, so stay tuned!
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