Follow us on LinkedIn to see future News.
May 1, 2023
On April 24, 2023, the City of Chicago enacted key amendments to the City’s ban-the-box ordinance.[1] The ordinance is one of many ban-the-box laws across the country designed to dismantle structural impediments that people with criminal records face when trying to find jobs.
The amendments largely mirror changes made to the Illinois Human Rights Act in March 2021, which supplement requirements under Illinois’s Job Opportunities for Qualified Applicants Act regarding employment screenings. Specifically, these amendments contain the following requirements:
Individualized Assessment Requirement
An employer may not use an individual’s conviction record[2] 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,[3] unless: (1) the law excludes an individual with certain criminal convictions from the subject position; (2) a standard fidelity bond (or equivalent bond) is required for the subject position, and an individual’s conviction of certain specified offenses would disqualify them from obtaining such a bond, in which case an employer may inquire whether the individual has ever been convicted of any of those offenses; (3) there is a substantial relationship between the individual’s conviction record and the job sought or held; or (4) 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 ordinance lists six factors that an employer must consider in making its decision based on an individual’s conviction record: (1) the length of time since the conviction; (2) the number of convictions that appear on the conviction record; (3) the nature and severity of the conviction and its relationship to the safety and security of others; (4) the facts or circumstances surrounding the conviction; (5) the age of the employee at the time of the conviction; and (6) evidence of rehabilitation efforts.
Notice Requirements
If an employer makes a decision that an individual’s conviction record disqualifies them from a position, the employer must notify the individual in writing of both its preliminary and final decision to take an adverse action. These notices are known as ‘Pre-Adverse Action Notice’ and ‘Final-Adverse Action Notice.’
Pre-Adverse Action Notice
Pre-Adverse Action notices must include the following: (1) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the preliminary decision, and the employer’s reasoning for the disqualification; (2) a copy of the conviction record(s); and (3) an explanation of the individual’s right to respond to the employer’s decision before it becomes final.
An employee has at least five business days to submit a response to the employer’s preliminary notice before the employer can make a final decision.
Final-Adverse Action Notice
If an employer makes a final decision to take an adverse action, the Final-Adverse Action notice must include the following: (1) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the final decision, and the employer’s reasoning for the disqualification; (2) any procedure the employer has for the individual to challenge the decision; and (3) information regarding the individual’s right to file a complaint with the Chicago Commission on Human Relations.
In light of these updates to the City’s ban-the-box legislation, Chicago employers should review their employment screening policies and update them accordingly. Specifically, in the event an employer takes an adverse action based on an individual’s criminal history, the employer should ensure that it meets the above-referenced notice requirements.
This newsletter is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
[1] Amends Section 6-10-054 of Chicago’s Municipal Code.
[2] ‘Conviction record’ means information indicating that a person has been convicted of a felony, misdemeanor, or other criminal offense, placed on probation, fined, imprisoned, or paroled by a court of any jurisdiction pursuant to any law enforcement or military authority.
[3] A similar provision applies to arrest records; however, that provision notes that an employer may not inquire into an individual’s arrest record. An ‘arrest record’ means (1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information ordered, expunged, sealed, or impounded under Section 5.2 of the Criminal Identification Act. Notably, the prohibition against the use of an arrest record does not prevent an employer from obtaining or using other information that indicates that person actually engaged in the conduct for which they were arrested.
