Interviewing and Selecting Job Candidates: Illinois

Interviewing and Selecting Job Candidates requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Stuart R. Buttrick, Susan W. Kline and Ryann Ricchio, Faegre Baker Daniels LLP

Summary

  • Employers cannot base hiring decisions on characteristics protected by Illinois antidiscrimination laws. See The Application Process.
  • With some exceptions, employers are prohibited from inquiring about certain information, including an applicant's arrest record and credit history. See Impermissible and Restricted Inquiries.
  • Illinois has special requirements that restrict employers from asking about a job applicant's credit history except in certain defined circumstances. See Credit Reports.
  • Most private employers are restricted in asking about an applicant's arrest and conviction record. See Criminal History.
  • An employer violates Illinois human rights law if it requires job applicants to submit I-9 documentation beyond that required by federal law. See E-Verify.
  • Employers are required to retain hiring documentation, including job applications and job descriptions, for one year. See Record Retention.
  • Organizations should take steps to avoid negligent hiring and negligent retention lawsuits. See Negligent Hiring and Retention.

The Application Process

Illinois antidiscrimination laws, such as the Illinois Human Rights Act (IHRA) and the Right to Privacy in the Workplace Act, prohibit employers from discriminating against or refusing to hire an individual on the basis of the following protected characteristics:

  • Marital status;
  • Physical or mental handicap;
  • Sexual orientation;
  • Sex;
  • Military status;
  • Unfavorable military discharge status;
  • Language use unrelated to job duties;
  • Age (over 40);
  • Religion;
  • Race and color;
  • National origin and ancestry;
  • Genetic information;
  • Off duty lawful conduct; and
  • Pregnancy.

See, e.g., +775 ILCS 5/1-101; +410 ILCS 513/15; +820 ILCS 55/5.

The IHRA applies to employers that have had 15 or more employees in Illinois for 20 or more calendar weeks preceding the alleged violation. Other statutes such as the Illinois Genetic Information Privacy Act and the law prohibiting discrimination based on lawful, off-duty conduct apply to all employers.

Employers should note that the Illinois antidiscrimination laws are not affirmative action measures and as such, individuals in the protected classes need not be given preference over those who do not carry any protected characteristic. Parties to public contracts are an exception and must undertake affirmative action to ensure equal employment opportunity and to eliminate the effects of past discrimination.

Pregnancy Accommodations

As of January 1, 2015, all Illinois employers are required to accommodate female job applicants and employees affected by pregnancy, childbirth or related conditions. This law applies to full-time, part-time and probationary employees as well as job applicants. Among other things, the Illinois Human Rights Act now provides pregnant workers with protections such as:

  • Limits on heavy lifting;
  • Assistance in manual labor;
  • Temporary transfer to a less strenuous position;
  • More frequent bathroom breaks; and
  • A private break space for breastfeeding and expressing milk.

Under this new law, employers may not take action against an applicant or employee for requesting an accommodation. The law also specifically prohibits an employer from requiring a pregnant employee to take a leave of absence if another reasonable accommodation can be provided. However, it does not require an employer to create a new position solely to accommodate a pregnant applicant or employee.

Impermissible and Restricted Inquiries

Illinois antidiscrimination regulations expressly prohibit employers from asking job applicants about disabling conditions, sex, national origin or citizenship unless the protected characteristic is a necessary qualification for the job. Employers also should refrain from asking about other protected characteristics that are not necessary qualifications, including genetic information and marital status.

In addition, inquiries into a job applicant's arrest record are restricted in Illinois. See Criminal History.

Polygraph Testing

Illinois' Detection of Deception Examiners Act (DDEA) prohibits employers from using polygraph testing to inquire into a job applicant's:

  • Religious beliefs or affiliations;
  • Beliefs or opinions regarding racial matters;
  • Political beliefs or affiliations;
  • Beliefs or affiliations regarding unions or labor organization; or
  • Sexual preferences or activity.

Violations of the Act will subject the employer to criminal penalties. +225 ILCS 430/14.1.

Credit Reports

The Illinois Employee Credit Privacy Act prohibits employers from:

  • Inquiring into an applicant's credit history or credit report;
  • Ordering or obtaining an applicant's credit report from a consumer reporting agency; and
  • Refusing to hire or recruit a job applicant based on the applicant's credit history or credit report.

+820 ILCS 70/10(a).

There are exceptions, however. For instance, an employer may inquire into, or base an employment action on, an applicant's credit report if a satisfactory credit history is an "established bona fide occupational requirement." The law lays out particular circumstances in which a credit history is an "established bona fide occupational requirement." These circumstances include when:

  • State or federal law requires bonding or other security covering an individual holding the position;
  • The duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more;
  • The duties of the position include signatory power over business assets of $100 or more per transaction;
  • The position is a managerial position which involves setting the direction or control of the business;
  • The position involves access to personal or confidential information, financial information, trade secrets or State or national security information; or
  • The position meets criteria in administrative rules, if any, that the U.S. Department of Labor or the Illinois Department of Labor issued to establish the circumstances in which a credit history is a necessary occupational requirement.

+820 ILCS 70/10(b).

Employers cannot require an applicant to waive his or her rights under the Act. Applicants have a private right of action against employers who violate the Act and may seek injunctive relief, damages, costs and reasonable attorney's fees.

It should be noted that employers may still conduct background investigations and screening, so long as credit history or credit reports are not a component. Any background investigations an employer conducts must still comply with the federal Fair Credit Reporting Act. See Recruiting and Hiring > Preemployment Screening and Testing > Complying With the Fair Credit Reporting Act (FCRA).

Criminal History

The Illinois Human Rights Act (IHRA) makes it a civil rights violation for an employer to inquire into an applicant's arrest record. It is unlawful for an employer to refuse to hire or to act with respect to recruitment, including selection for training or apprenticeship, based on the applicant's arrest record.

Under the Illinois Criminal Identification Act, an employer must include language on a job application that informs job applicants they are not required to disclose arrests. If state or federal law requires the employer to conduct a criminal background check, the IHRA does not prohibit the employer from inquiring into, or basing decisions on, an arrest record. +775 ILCS 5/2-103.

Several categories of workers in Illinois must undergo mandatory criminal background checks, including a check of national and state sex offender registries. Recruiting and Hiring > Preemployment Screening and Testing > Arrest and Conviction Records.

Ban the Box

Effective January 1, 2015, Illinois law prohibits private employers with 15 or more employees in the current or preceding year and employment agencies from asking criminal history questions on job applications. Employers may still lawfully make criminal history inquiries after a candidate has been selected for an interview or, if there is not an interview, after a conditional employment offer has been made. See +2013 Bill Text IL H.B. 5701.

The new Job Opportunities for Qualified Applicants Act has limited exemptions, including for emergency medical positions or where an employer is required to exclude applicants with certain criminal convictions from employment due to federal or state law. State agencies already had been prohibited from including criminal history questions on initial job applications.

Chicago Ordinance

Also effective January 1, 2015, a Chicago city ordinance restricts most employers from asking criminal history questions on job applications. Chicago's "ban the box" law applies to private employers with less than 15 employees that are licensed in the city or have a business facility within city limits. The ordinance bans criminal record questions until after a job applicant has been notified that he or she will be interviewed. If no interview is to take place, the employer may not ask about or consider the applicant's criminal record until a conditional job offer has been made. The ordinance also applies to city agencies.

All employers regardless of size must inform an applicant of the reason for withdrawing a conditional offer if they decide not to hire the person based in whole or in part on their criminal record. Violators of the ordinance face penalties ranging from $100 to $1,000 per offense. The ordinance's limited exceptions mirror the statewide "ban the box" law.

Sealed Records

When making criminal history inquiries, employers should be aware that the following offenses are eligible to be sealed in Illinois if certain conditions are met:

  • Theft;
  • Retail theft;
  • Forgery;
  • Deceptive practices;
  • Possession of burglary tools;
  • Possession with intent to manufacture or deliver a controlled substance;
  • Drug possession; and
  • Prostitution.

This law does provide some protections for employers. For instance, it requires a person to wait four years from the end of his or her last sentence before he or she may ask for his or her criminal record to be sealed. Also, the measure mandates that individuals pass a drug test within 30 days before filing a petition to seal.

Effective January 1, 2014, another Illinois law allows for nonviolent convictions to be cleared from a person's record (i.e., expunged), provided that the individual has successfully completed at least two years of probation. +2013 Bill Tracking IL H.B. 3010. However, employers may still question job applicants about criminal convictions (misdemeanor or felony) that have not been sealed or expunged.

Tax Incentive for Hiring Ex-Offenders

In 2013, Illinois increased the income tax credit for employers that hire qualified individuals with criminal records to a maximum of $1500 per employee. The previous income tax credit in Illinois had been capped at $600 per employee. In addition, employers may claim the tax credit if they hire an ex-offender within three years of his or her release from prison. Previously, the hire had to take place within one year of the job applicant's release. Tax credits per employee may now be taken for up to five years.

Driver's Records

Employers may request directly from the Illinois Secretary of State a job applicant's driver identification number, name, address (not including the zip code) and telephone number if the request is to verify information relating to the applicant's commercial driver's license.

The employer may not request information on an applicant's vehicular accidents, driving violations or driver status directly from the Secretary of State. However, there are no laws restricting an employer from requiring the applicant to provide a copy of the applicant's driving record as part of the interview and selection process. +625 ILCS 5/2-123 and +625 ILCS § 5/1-159.2.

Drug Screening

Under Illinois law, an employer may require job applicants to submit to post-offer drug testing. However, the employer may not require the applicant to pay for the cost of the drug test. +820 ILCS 235/1.

The IHRA should not be construed to encourage, prohibit, restrict or authorize an employer to test a job applicant for illegal drug use or from making an employment decision based on the results of a drug test.

An employer may adopt or administer reasonable policies or procedures, including drug and alcohol testing, to ensure that an applicant who has (1) successfully completed a supervised drug rehabilitation program or (2) is participating in a supervised rehabilitation program is no longer engaging in the illegal use of drugs. +775 ILCS 5/2-104. The IHRA expressly excludes alcohol and illegal drug use from the definition of disability. +775 ILCS 5/1-103.

So as to minimize exposure to discrimination lawsuits under state and federal law, employers should similarly test all applicants for the same job and should test applicants only after making a conditional offer of employment.

The Illinois Substance Abuse Prevention on Public Works Projects Act requires contractors and subcontractors that perform work on public works projects to have a comprehensive substance abuse prevention program in place. +820 ILCS 265/15. Employers must test job applicants and employees for drugs and alcohol at different stages of the employment relationship, including pre-hire, random, reasonable suspicion and post-accident testing.

E-Verify

An employer violates the Illinois Right to Privacy in the Workplace Act if it uses the federal Employment Eligibility Verification System, e.g., E-Verify, to verify the employment eligibility of a job applicant prior to hiring the applicant. +820 ILCS 55/12.

If after using the E-Verify system, an employer receives a tentative nonconfirmation notice, the employer must inform the applicant of his or her right to contest the notice and provide the applicant with the contact information for the relevant government agencies that the applicant may contact to resolve the notice. See Recruiting and Hiring > Preemployment Screening and Testing > E-Verify.

Record Retention

Employers are required to retain applications for employment, resumes, interview forms, qualifying examinations, background reports, and medical history and physical exam reports for one year after the date the application is submitted. +56 Ill. Adm. Code 2520.110.

Employers also must retain job descriptions, production standards and other documents regarding job duties, qualifications and performance criteria for up to one year after the date the documents cease to be effective.

Negligent Hiring and Retention

In Illinois, employers have a duty to exercise reasonable care in hiring and retaining employees. If an employer knew, or had reason to know, of an employee's unfitness for his or her position at the time of hiring and injury resulted to a third party as a result of the employer's failure to exercise its duty of reasonable care, the employer may be liable for negligent hiring or retention. See Van Horne v. Muller, +705 N.E.2d 898 (Ill. App. Ct. 1998).

In light of state laws restricting the types of inquiries employers may conduct into an applicant's background, it may be difficult for an employer to uncover all red flags. However, an employer can take steps to minimize its exposure to negligent hiring suits. Employers can:

  • Conduct all background checks permitted or required by applicable state and federal law and screen those areas reasonably expected to reveal pertinent information about the applicant's fitness for a particular position, including criminal history;
  • Probe any gaps in the applicant's employment history;
  • Fully document the screening or credentialing process, even if unsuccessful in gathering information sought. For example, the employer should make a record when it contacts all references, even if those references prove to be unresponsive;
  • Document the reasons for hiring an applicant despite red flags uncovered during the screening process; and
  • Keep a written screening policy and train screening personnel to be thorough and consistent in conducting all aspects of the screening process if the employment screening is done in-house as part of the selection process.

Personnel Files

Illinois' Personnel Record Review Act grants employees the right to inspect their personnel files. +820 ILCS 40/2. This includes documents placed in the employee's file during the recruitment and selection process. Specifically, the employee is allowed to inspect any personnel documents which are, have been, or are intended to be, used in determining that employee's qualifications for employment.

Upon the employee's request, which the employer may require to be in writing, the employer must allow the employee to inspect his personnel file within seven working days of the request. Under certain circumstances, employers may have up to 14 working days to respond the employee's request. Employees do not have the right to remove any part of their personnel records from the place of inspection, but they may, however, obtain a copy of all or part of the personnel record.

There are some exceptions. An employee does not have a right to inspect:

  • Letters of reference for that employee or external peer review documents for academic employees of institutions of higher education;
  • Any portion of a test document, except that the employee may see a cumulative total test score for either a section of or the entire test document;
  • Materials relating to the employer's staff planning, such as matters relating to the business' development, expansion, closing or operational goals, if the materials relate to or affect more than one employee, provided, however, that this exception does not apply if such materials are, have been or are intended to be used by the employer in determining an individual employee's qualifications for employment;
  • Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy;
  • An employer that does not maintain any personnel records;
  • Records relevant to any other pending claim between the employer and employee that may be discovered in a judicial proceeding; or
  • Investigatory or security records maintained by an employer to investigate an employee's criminal conduct or other employee activity that could reasonably be expected to harm the employer's property, operations or business or could cause the employer financial liability, unless and until the employer takes adverse personnel action based on information in such records.

+820 ILCS 40/2.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Recruiting and Hiring > Interviewing and Selecting Job Candidates

Recruiting and Hiring > Recruiting: Illinois

Recruiting and Hiring > Preemployment Screening and Testing: Illinois