It seems that the State of Illinois is on the verge of enacting legislation that would prohibit criminal background screening of an applicant until the applicant is selected for an interview or a conditional offer of employment is made.

On May 29, 2014, during the final days of the Illinois legislative session which ended on May 31, 2014, both Houses of the legislature passed a measure that would ban Illinois employers from inquiring into an applicant’s criminal history until the interviewing process has commenced or an unconditional offer of employment has been made. The Bill, aptly titled as the Job Opportunities for Qualified Applicants Act (House Bill 5701), which has seven (7) House supporters and seventeen (17) Senate supporters, prohibits Employers (Employers with fifteen (15) or more employees) and employment agencies from inquiring about or considering the criminal background history of an applicant until the applicant has been determined to be qualified for the position and selected for an interview or, if interviews are not used by the Employer, been granted an unconditional offer of employment.

House Bill 5701 exempts from coverage Employers who employ individuals licensed under the Emergency Medical Services (EMS) Systems Act; Employers who are subject to state and/or federal laws requiring exclusion of applicants with certain criminal convictions; and Employers who require a standard fidelity bond which would disqualify the applicant because of his or her criminal conviction. The law also provides that the Illinois Department of Labor shall have the ability to investigate any alleged violations by an Employer or an employment agency and authorizes the imposition of civil penalties and warnings. As well, the Act also provides that any monies recovered by the DOL shall be deposited into a Job Opportunities for Qualified Applicants Enforcement Fund with monies from that Fund to be used only to enforce investigations of Employers’ violations of the Act.

It is interesting to note that the Illinois Bill is very consistent with the EEOC’s enforcement guidance guidelines dealing with criminal background checks (i.e., consideration of the candidate’s conviction record; the time that has elapsed since conviction; and whether the conviction has a “direct bearing” on the job fitness of the candidate). It is even more interesting that the Illinois approach is in direct conflict with actions being taken by other states that are seeking to challenge and have declared the EEOC enforcement guidelines as inappropriate (see, for example, State of Texas v. EEOC, 13 CV 255 (ND of TX, 2014)). This Bill just awaits the signature of Governor Quinn and will certainly impact the hiring process.

Questions? Contact Founder and Senior Shareholder Richard H. Wessels of Wessels Sherman’s St. Charles office at (630) 377-1554 or by email at rwessels@wesselssherman.com.