The “ban-the-box” movement has grown across the United States. The purpose behind the movement is to encourage federal, state and local governments to enact employment laws to restrict or eliminate questions on employment applications asking applicants about their criminal history.
Elimination of the boxes that prospective employees check in response to a question about having a criminal conviction history would force potential employers to assess the qualifications of the applicant based upon his or her capacity to perform the job. The use of criminal background questions on employment applications promotes the formation of judgments about potential employees on the basis of criminal background history instead of on their qualifications.
At least 24 states have enacted some form of ban-the-box law restricting employers from asking about criminal convictions during the application and early interview process. Included among the states enacting such laws are: California, Colorado, Connecticut, Delaware, Hawaii and Illinois. More than 100 cities and counties throughout the country have enacted their own ban-the-box laws.
Employers must look to local laws as well as to their state statutes in order to make certain their hiring practices are in compliance with ban-the-box legislation. For example, employers based in Chicago must comply with Illinois legislation and a city ordinance in order to be in full compliance.
State law in Illinois
As of January 1, 2015, it became unlawful in Illinois for public and private employers with 15 or more employees to ask about an applicant’s criminal history prior to the individual being evaluated for the position based upon his or her qualifications and notified of an impending interview or after the individual has been tendered a conditional offer of a job. There are three narrow exemptions under which an employer can include criminal background questions:
- Positions for which state or federal law excludes individuals convicted of certain types of crimes
- Positions requiring a standard fidelity bond that a criminal conviction would exclude the applicant from obtaining
- Positions for employers licensed under the Emergency Medical Services Systems Act
State law in Illinois places no limitations on the criminal information that may be considered or how such information may be taken into consideration in making the decision to hire a specific applicant. It also does not require employers to notify applicants of the reason a job offer or interview has been withdrawn.
Complying with state law in Illinois may not be enough for Chicago employers
Chicago has its own version of the ban-the-box legislation that went into effect on the same day as the state statute. The city ordinance requires employers to notify applicants if an interview or job offer has been withdrawn based on the individual’s criminal history. The notification must state that the criminal conduct was a factor in the employer’s decision, so this is a major deviation from the mandates of the state statute. Keep in mind, however, that it only applies to employers located within the city of Chicago.
The Chicago ordinance offers additional protections for prospective employees that may not exist under the state law when it comes to evaluating a criminal conviction history. For instance, unlike the state law that does not impose guidelines on the use of criminal conviction information, the city ordinance requires employers to take into consideration the following factors when reviewing such information:
- The nature of the offenses and the sentence imposed
- The number of convictions, the length of time since the most recent conviction and the age of the individual at the time the convictions
- The relationship between the crimes and the nature of the position for which the person applied
- Evidence of rehabilitation, treatment and counseling
- Extent to which the applicant was honest, cooperative and forthcoming about the convictions
Cook County followed the enactment of ban-the-box laws by the state and by the city of Chicago by passing its own legislation. Effective July 29, 2015, all employers in Cook County, regardless of the number of workers they employ, must comply with rules similar to those contained in the Chicago ordinance.
The federal government trails behind the states
Currently, there is no federal ban-the-box law, but President Obama signed an executive order in November 2015 that requires federal agencies to delay inquiries about a job applicant’s criminal background until later in the hiring process. Congress has not passed legislation making the president’s executive order the law of the land.
Employers should review their employment policies
Employers should review their online and print job applications and their employment practices to make sure they comply with state, county and city ban-the-box laws. They should also take steps to train individuals involved in the hiring process to be aware of ban-the-box legislation and the rules that apply during the interview process to ensure compliance.
Please contact Kristin at McKenna Storer for questions about this blog and any other employment law matters.