Illinois Ban the Box Law Puts New Restrictions on Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
January 5, 2015
Effective New Year's Day, Illinois bans most private employers from asking criminal history questions on an initial job application under the Job Opportunities for Qualified Applicants Act. The Act applies to private employers with 15 or more employees in the current or preceding calendar year and employment agencies.
Illinois is the 12th state to have a "ban the box" law, and the fifth to have it apply to most or all private employers. "Ban the box" refers to the movement seeking to remove the box on job applications that prospective employees are often asked to check off if they have ever been convicted of a crime. On March 1, New Jersey will join that list of states with a measure that also will cover many private employers.
The new Illinois law says an employer may not ask about an applicant's criminal background until after the employer deems the applicant qualified for the position and selects the person for an interview. If no interview is conducted, the employer may not inquire into the applicant's criminal record until after making a conditional job offer. Illinois already prohibits state agencies from including criminal history questions on application forms.
The Illinois Department of Labor will provide a written warning to a noncompliant employer or employment agency for a first violation. However, subsequent violations will result in penalties ranging from $500 to $1,500 for every 30 days that pass without the situation being remedied.
The law also includes limited exceptions for emergency medical services employees and when employers must exclude applicants with certain criminal convictions under federal or state law.
Other Municipalities Banning the Box
More than 70 municipalities have enacted varying "ban the box" laws, including some of the nation's biggest cities.
Columbia, Missouri is the latest city to enact a "ban the box" measure, and the first in the Show Me State to apply it to private employers. Effective December 1, 2014, Columbia prohibits employers with operations in the city from asking about a job applicant's criminal history or conducting a criminal background check prior to making a conditional employment offer. St. Louis and Kansas City also have "ban the box" laws, but these restrictions are limited to city job applications.
A broad "ban the box" measure also took effect in December 2014 in Washington, DC. The law applies to employers with more than 10 employees working in the nation's capital. It prohibits covered employers from asking criminal history questions or seeking criminal records until after a conditional job offer has been made. It also bans inquiries - at any point in the selection process - into arrests or criminal accusations against an applicant that are not pending or did not result in a conviction.
In addition, even after extending an employment offer, a covered employer may not withdraw that offer or take other action based on a criminal record, unless there is a "legitimate business reason." In the event of a violation, the following penalties may be imposed:
- For employers with 11 to 30 employees, a fine of up to $1,000;
- For employers with 31 to 99 employees, a fine of up to $2,500; or
- For employers with 100 or more employees, a fine of up to $5,000.
A pair of large neighboring Maryland counties also have enacted "ban the box" laws that apply to private employers. Effective January 20, 2015, Prince George's County will prohibit employers with at least 25 full-time employees from asking applicants about their criminal history or seeking a background check until after a first interview. Significantly, this measure includes possible fines for employers of up to $5,000 per violation.
In addition, Montgomery County now bans employers with 15 or more employees working in the county from asking criminal history questions on initial job applications, or until the conclusion of a first interview. However, an employer may ask about an applicant's criminal record if the applicant has voluntarily disclosed his or her record. The law took effect January 1, 2015.
Under both of these counties' laws, an employer that decides to deny employment based on criminal history must notify the applicant within seven days of the decision.