Can you refuse to hire or fire a person who has an arrest or criminal record? On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480 (SB 1480). SB 1480 amends the Illinois Human Rights Act, the Illinois Equal Pay Act as well as the Illinois Business Corporation Act. All such amendments have an impact on Illinois businesses including health care providers, and their employment policies and responsibilities.
Prior to the enactment of the SB 1480 amendments to the Human Rights Act (HRA), Illinois employers were prohibited from making employment decisions based upon an employee’s or applicant’s arrest record. The reasoning for this is that an arrest is just that, an arrest. It is not a finding of guilt.
Under the SB 1480 HRA amendment those prohibitions are extended to employees or applicants who have been convicted of a crime, not just accused of one. Section 2-103.1 of the HRA states in relevant part:
(A) Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record, as defined under subsection (G-5) of Section 1-103, as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment (whether "disqualification" or "adverse action")
One might ask, “Are there some circumstances in which I can deny employment or make an adverse employment decision based upon a person’s record of a criminal conviction?” The amendment to the HRA allows an employer to use a conviction record when:
Under the Act, “substantial relationship” means 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. As an example, hiring a person who has convictions for larceny or forgery or theft could give an employer pause when that person would be in a position of trust relating to the handling of money.
When deciding whether a person with a criminal record creates an unreasonable risk, the HRA states that the employer should consider the following factors:
An employer confronted with such an issue is required to engage in an “interactive assessment” before deciding that a certain conviction is disqualifying. If an employer makes a preliminary decision that an employee’s conviction disqualifies the employee (or applicant) the employer shall notify the employee of this preliminary decision.
The notification must contain all the following:
(a) notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer's reasoning for the disqualification; and,
(b) a copy of the conviction history report, if any; and
(c) an explanation of the employee's right to respond to the notice of the employer's preliminary decision before that decision becomes final. The explanation shall inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.
Under the SB 1480 amendment, the employee shall have at least 5 business days to respond to the notification before the employer makes a final decision. If the employer’s final decision is to disqualify the employee or take adverse action solely or in part because of the employee’s conviction record, the employer shall notify the employee in writing of the following:
(a) notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer's reasoning for the disqualification;
(b) any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
(c) the right to file a charge with the Illinois Department of Human Rights.
The question that we are asked frequently by health care providers is, “I am prohibited by Illinois law from hiring persons into certain positions who have been convicted of certain crimes. How does this new law affect me when confronted with an applicant who has been convicted of such a crime?”
If an employer receives an application from a person who is undergoing a legally performed background check, and the prospective employee is found to have been convicted of a crime which legally disqualifies that person from being in the position for which the person applied, the employer must notify the applicant or employee of their employment disqualification pursuant to the law. The applicant or employee then has 5 business days to respond where the employee can dispute the accuracy of the conviction record. The same is true if a current employee is convicted of a legally disqualifying crime.
The language of this section of the HRA makes it clear that all employers should eliminate any employment policies that contain a blanket “do not hire” any applicant or allow any employee to remain in employment if that applicant or employee has been convicted of a criminal offense. Having such a policy, whether written or unwritten, can lead to a finding of unlawful discrimination under the Human Rights Act.
In the next issue, we will examine the new reporting requirements under SB 1480 placed upon Illinois employers related to assuring equal pay for equal work under the Illinois Equal Pay Act.
For further information contact us.
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