New Law Restricts the Use of Criminal Convictions in Employment Decisions

On March 23, 2021, Illinois Governor J.B. Pritzker signed the Employee Background Fairness Act (“EBFA”), which greatly limits the degree to which businesses can consider criminal convictions in the context of personnel decisions.

Under the EBFA, it is now a civil rights violation for any employer, employment agency, or labor organization to use a criminal conviction as a basis to fire, discipline, or discharge an employee.  At the same time, the new law prohibits employers from refusing to hire, promote, select, tenure, or train employees (or prospective employees) on the basis of criminal convictions.

The EBFA identifies only two situations in which businesses may consider criminal convictions in the employment context:

• Where there is a “substantial relationship” between a previous criminal offense and the employment sought or held; or
• Where the granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The EBFA defines a “substantial relationship” to mean “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”  Although this guidance is not particularly precise or instructive, the statute does provide six factors that employers are directed to consider, including:  (1) the length of time since the conviction; (2) the number of convictions on the record; (3) the nature and severity of the conviction and its relationship to safety and security; (4) the facts or circumstances surrounding the conviction; (5) the age of the employee at the time of the conviction; and (6) any evidence of rehabilitation efforts.

After considering the above factors, an employer that makes a preliminary decision to consider a criminal conviction in the context of a personnel decision must notify the affected employee (or prospective employee) in writing.  The notice from the employer must:  (a) identify the convictions that are the basis for the preliminary decision and explain the employer’s rationale; (b) provide a copy of the conviction history report; and (c) explain the employee’s right to challenge the notice from the employer before the preliminary decision becomes final.

The employee or prospective employee is then given at least five (5) business days to respond to the notification from the employer.  The employee’s response can include evidence challenging the accuracy of the conviction record or evidence of mitigation (such as rehabilitation efforts).

The employer must then consider any information submitted by the employee before it renders a final decision.  If the employer maintains that a criminal conviction must still be considered in a personnel decision, the employer must notify the employee of the convictions that are basis for the employer’s final decision, along with any procedures that the employer has in place for appealing or requesting reconsideration of the final decision.  The employer must also alert the employee that he or she has the right to file a charge with the Illinois Department of Human Rights.

The EBFA takes effect immediately and essentially upends traditional criminal background checks performed in the employment context.  The new legislation also assigns significant additional responsibilities to employers if a criminal conviction is to be used as a factor (of any kind) in a personnel decision.  The takeaway for most businesses is that current policies surrounding criminal background checks will need to be reconsidered, and that criminal convictions should now be treated as the functional equivalent of a “protected class” under Illinois law.

Employers who need assistance complying with the new EBFA should contact the Labor & Employment Practice Group at Burke, Warren, MacKay & Serritella without delay.