Employment Offer: Illinois
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stuart R. Buttrick, Susan W. Kline, Stacey Smiricky and Lindsey M. Hogan, Faegre Baker Daniels LLP
- Illinois is an employment at-will state, but contracts, either written or oral, may alter the at-will doctrine. See Employment Offer.
- Employment offers may be made on a conditional basis. See Conditional Employment Offers.
- Employers may withdraw their job offers, provided they do so at the appropriate time. See Withdrawing an Employment Offer.
- Chicago has requirements pertaining to employment offers. See Local Requirements.
To create an employment contract, ordinarily, the employer offers the employee a job, and when the employee accepts the offer, a contract is formed. Hany v. General Elec. Co., +581 N.E.2d 1213 (Ill. App. 4th Dist. 1991).
Although Illinois law provides that employment offers may be made either orally or in writing, employers are best protected by clearly documented written offers. After extending any oral offer of employment, the employer should confirm the terms of that offer in writing and send it to the potential employee. At a minimum, the employment offer should contain the following basic terms:
- The date of the offer;
- The names of the employer and employee;
- The position offered and whether it is full-time or part-time;
- Conditional terms, such as acceptable results of background checks, execution of restrictive covenants, drug testing, etc.,
- Anticipated start date;
- Benefits; and
- Date the offer will expire.
If the employer intends an at-will employment relationship, the offer letter should clearly state that employment will be on an at-will basis and that the terms of employment described in the offer are not guaranteed for any period of time. The offer also should not state or imply any assurances regarding length of time in which salary will be provided or promise future compensation. Such statements could alter the at-will employment relationship.
Enforcement of Offers Relied Upon
Under Illinois employment law, the court may uphold gratuitous promises, even though no contract exists, if an employee demonstrates that he or she relied on the employer's promise to his or her detriment. Geva v. Leo Burnett Co., Inc., +931 F.2d 1220 (7th Cir. 1991) (applying Illinois law).
Employers' "off-the-cuff" statements when communicating the employment offer can convert at-will relationships into contractual relationships. Comments that may alter the at-will relationship include:
- "You have nothing to worry about";
- "You can work for as long as you wish"; and
- "You can have the job until you retire or no longer want it".
Therefore, employers should use caution when communicating an employment offer in order to avoid altering the intended at-will employment relationship.
Conditional Employment Offers
Illinois employers can require that a particular event happen or require the employee to do something in order for acceptance to occur. For instance, an employer can require an employee to travel to a job site and sign papers in order to accept the employment contract. Energy Erectors, Ltd. v. Industrial Com'n, +595 N.E.2d 641 (Ill. App. 5th Dist. 1992). Illinois law does not specifically address whether employment can be conditioned on motor vehicle checks, reference checks, certification of educational requirements or criminal background checks. However, employers in Illinois should be aware of the following:
Employers in Illinois may not do any of the following:
- Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit history or credit report.
- Inquire about an applicant or employee's credit history.
- Order or obtain an applicant or employee's credit report from a consumer reporting agency.
However, if the employer has a bona fide occupational requirement, the employer may perform a credit check. In order to be legally permitted to perform a credit check one of the following circumstances must be present:
- State or federal law requires the employee to be bonded.
- 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.
- The position meets criteria in administrative rules, if any, that the US Department of Labor or the Illinois Department of Labor has promulgated to establish the circumstances in which a credit history is a bona fide occupational requirement.
- The employee or applicant's credit history is otherwise required by or exempt under federal or state law.
An employer cannot impose upon a person as a condition of obtaining employment any terms or conditions that would require him or her to violate or forgo a sincerely held practice of his or her religion, including the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion. However, an employer will not be in violation of this law if after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held religious belief, practice or observance without undue hardship on the conduct of the employer's business. Further, this law does not prohibit an employer from enacting a dress code or grooming policy that may include restrictions on attire, clothing, or facial hair to maintain workplace safety or food sanitation. +2017 IL S.B. 1697.
Job Opportunities for Qualified Applicants Act
The Job Opportunities for Qualified Applicants Act prohibits private employers with 15 or more employees and employment agencies from asking criminal history questions on job applications. +820 ILCS 75/10. 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. +820 ILCS 75/15.
The 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.
Criminal History Records
Employers with 15 or more workers during 20 or more calendar weeks within a year may not use expunged, sealed, or impounded arrest records or criminal history records as a basis for denying employment. However, employers may request sealed felony conviction information when the employer is a state agency, unit of local government or school district, or private organization requesting or using sealed felony conviction information to comply with state or federal law.
Moreover, employers are expressly authorized to review a job applicant's conviction history, whether or not this history has been sealed for the following job categories:
- Certified (i.e., teachers) and noncertified school workers:
- Health care workers;
- Child care workers;
- Armed security guards;
- Private detectives;
- Locksmiths; and
- Carnival workers.
+105 ILCS 5/10-21.9 (school workers); +225 ILCS 46/15 (health care workers); +225 ILCS 10/4.1 (child care workers); +68 Ill. Adm. Code 1240.10 (armed security guards); +225 ILCS 447/35-30 (private detectives and locksmiths); and +430 ILCS 85/2-20 (carnival workers).
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:
- Retail theft;
- Deceptive practices;
- Possession of burglary tools;
- Possession with intent to manufacture or deliver a controlled substance;
- Drug possession; and
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.
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.
Covenants Not to Compete
A covenant not to compete, which is also referred to as a noncompetition agreement or restrictive covenant, prohibits employees from working for competitors once their employment ends. The covenants usually restrict the time period and location an employee may work after leaving the employer. Employers may require a prospective employee to sign a noncompetition agreement as a condition of employment. See generally Bauer v. Sawyer, +134 N.E.2d 329 (Ill. 1956). See also O'Regan v. Arbitration Forums, Inc., +121 F.3d 1060 (7th Cir. 1997) (finding that company policy requiring a current employee to sign a noncompetition agreement did not violate Illinois public policy).
Under the Wage Payment and Collection Act, an employer cannot make as a condition of employment that the employee enroll in a direct deposit arrangement or make payment of wages by direct deposit. The employee must voluntarily accept this form of payment and voluntarily designate a bank or a financial institution, and an employer shall not require an employee to accept a payroll card as payment of wages, unless the employer obtains the employee's voluntary written or electronic consent to receive wages by payroll card.
Chicago also has requirements pertaining to conditional employment offers. See Local Requirements.
Withdrawing an Employment Offer
An employer may withdraw an employment offer before an employee accepts it. Hany v. General Elec. Co., +581 N.E.2d 1213 (Ill. App. 4th Dist. 1991). Depending on the offer, the employee may accept the offer by beginning to work or promise to work. Thus, if the employer withdraws the offer before the employee promises to work or begins to work, the offer is no longer valid. See generally Kuhnhoffer v. Naperville Comm. Sch. Dist. 203, +758 F. Supp. 468 (N.D. Ill. 1991).
In general, employees may not recover reliance damages under Illinois law for rescinded offers because ordinarily, employment contracts are terminable at-will. Thus, such a contract may not support a promissory estoppel claim unless the contract itself specifies a durational term. So long as the contract does not specify duration, the employment relationship is considered to be at-will even if the employment contract sets a monthly or annual salary.
Chicago Ban the Box
Chicago 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.
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