St. Louis area employers with employees in Illinois should be aware that, on January 1, 2015, Illinois joined the ranks of a dozen or so other states around the country that “ban the box.”
The Box
The “box” is that section of many standard employment application forms that asks applicants whether they previously have been convicted of a crime. In Illinois, employers are now prohibited from considering or inquiring about an applicant’s criminal record until the applicant has been determined qualified for the position and notified of an impending interview, or, if the applicant is not to be interviewed, after a conditional offer of employment is made.
Covered Employee
Employers with at least 15 employees in Illinois in the preceding or current calendar year must comply with the law. Agents of employers, such as recruiters, staffing agencies, and background investigators, are also subject to the law and, going forward, employers may be liable for violations committed by their agents.
Illinois’ ban the box law expressly exempts situations
• in which the employer is required by other laws to exclude applicants with certain criminal convictions;
• in which a fidelity or surety bond is required for the position and a conviction of certain criminal offenses would disqualify the applicant or the employer from obtaining the bond; or
• in which the employer hires person licensed under the Emergency Medical Systems Act.
Sanctions
Violations of the law may result in written warnings from the Illinois Department of Labor up to civil penalties of $1,500 for each violation.
Recommendation
St. Louis area employers with more than 15 employees in Illinois should make sure that their employment application form does not include a “box” or inquire about the applicant’s criminal history. Employers should refrain from conducting criminal background checks and from asking applicants about their criminal history prior to scheduling an interview or making a conditional offer of employment. After those stages, employers may ask applicants to supplement the information provided on application forms and disclose criminal history. Finally, employers should take steps to ensure that their recruiters, staffing agencies, and background investigators are complying with the new law.
Conclusion
Although criminal status is not, on its own, a protected class under federal law, employers in Illinois may be liable for non-compliant application forms or misuse of criminal history information.
