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“Ban the Box” is Coming to Illinois

Jason Tremblay

Illinois has become the 5th U.S. state to prohibit inquiries about criminal history on initial applications from most private sector jobs. Commonly known as “ban the box” legislation, the “Job Opportunities for Qualified Applicants Act” requires private employers or employment agencies in Illinois who employ at least 15 employees to evaluate an applicant’s skills and qualifications before inquiring into the applicant’s criminal history. While asking about criminal history is not prohibited, employers are prohibited from making inquiries into criminal backgrounds and convictions until later in the interviewing process. Specifically, an employer or employment agency cannot “inquire about or into, consider, 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….or, if there is not an interview, until after a conditional offer of employment is made to the applicant….”
Of course, there are exceptions to the prohibition of inquiring into criminal history prior to an interview, such as those positions involving fidelity bonding, jobs licensed under the Emergency Medical Services Act, construction contractor jobs, or jobs where employers have to disqualify applicants with certain criminal convictions due to federal or state law.
Illinois already prohibits state agencies from asking about criminal history on initial government job applications. Job applicants no longer have to answer questions on state employment applications indicating whether they have plead guilty to or have been convicted of any criminal offense other than a minor traffic violation. The “Job Opportunities for Qualified Applicants Act” essentially extends this rule to private employers in Illinois.
The Act does not provide any private right of action for violations, but the Illinois Department of Labor has the authority to investigate any alleged violations of the Act and impose civil monetary penalties ranging from $500 per violation to $1,500 per violation. The civil penalties assessed by the IDOL are recoverable in a civil action brought on behalf of the Department by the Illinois Attorney General.
What does this mean for Illinois employers and applicants? First, for applicants, it means that they will not have to answer any questions relating to their criminal background until at least being notified that they will be interviewed. Second, Illinois employers will need to modify their employment applications to provide that the question regarding criminal history need not be answered until after an interview has been granted. Alternatively, employers can simply remove the question from their employment applications altogether. Third, Illinois employers should also reevaluate the timing of when criminal background searches should be conducted. In light of the provisions of the Act, it is not permissible to conduct a criminal background check until after the applicant has been selected for an interview.
The Act will take effect on January 1, 2015.

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