Effective January 01, 2015 is a rather strict new law that could have far-reaching consequences for all industries and businesses employing 15 or more employees. The Job Opportunities for Qualified Applicants Act (“Act”), in general, states that no employer may inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer. There are limited conditions for which this prohibition does not apply which include:
- Where employers are required to exclude applicants with certain criminal convictions from employment due to federal or state law;
- Where a standard fidelity bond or an equivalent bond is required and an applicant’s conviction of one or more specified criminal offenses would disqualify the applicant from obtaining such a bond, in which case the employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses; and
- Employers who employ individuals licensed under the Emergency Medical Services (EMS) Systems Act.
It is apparent that the new Act is designed to force the employer to consider the applicant without the prejudice that criminal convictions may impose. However, there is nothing in the law that actually makes it illegal to ultimately not hire someone with a criminal record. The Act mostly affects timing–an employer cannot ask for a criminal record until after they have been offered an interview or a conditional offer. Therefore, an employer cannot reject a candidate because of a possible criminal conviction until after the applicant has been offered an interview or a conditional offer.
As an employer, this may seem like a frightening and unfair new law. However, there are certain things that an employer could do to minimize the risks. An employer, for example, can notify applicants in writing of the specific offenses that would disqualify an applicant from employment in a particular position due to federal or state or the employers policy. Importantly, it seems the Act allows for employers to consider the types of criminal convictions that would disqualify an applicant from a position without the conduct needing to conform to state or federal prohibitions. The caveat, though, is that an employer cannot actually ask the potential employee for the information until after an interview has been offered or a conditional offer has been made.
This law has an immediate effect on many employers as most applications have a question asking whether the applicant has been convicted of a felony or a misdemeanor, and some even have a consent and disclosure for background information. Under the Act both would be illegal at the application stage unless the applicant has been notified that he has been determined qualified for the position and selected for an interview or has been made a conditional offer of employment. Even providing that the applicant signs a disclosure requesting his or her consent to a background information report from a consumer reporting agency may potentially violate the Act.
Violations of the Act are investigated by the Illinois Department of Labor and the penalties include a written warning for first offenders to fines of $1500.00 for every 30 days that pass without remedy after the first 90 days have passed without compliance. Perhaps more prohibitive, though, may be legal costs of hiring an attorney as this can be a civil suit brought in circuit court.
See 820 ILCS 75/15 for the full Act and call Pat Coen at Zanck, Coen, Wright & Saladin, P.C., to answer your specific questions regarding the Act and how it affects your hiring process.