Two New Laws Encourage Employers To Overlook Past Incarceration

In his inaugural address, Governor Pritzker promised to expand “true justice in our criminal justice system” and advance “economic inclusion” for Illinoisans who have previously been incarcerated. Two new laws carry out this promise and build on the efforts of 2015’s “Ban the Box” law to make it easier for the estimated 42 percent of Illinois residents with criminal backgrounds to avoid automatic disqualification and to get jobs.

Illinois’ “Ban the Box” law, also known as the “Job Opportunities for Qualified Applicants Act” prevents certain employers or their agents from inquiring about a job applicant’s criminal history until after the applicant’s qualifications are reviewed. Specifically, employers are not allowed to inquire about an applicant’s criminal history until after an interview, and after a conditional offer of employment has been made. The Ban the Box Law was signed into law by Illinois’ last Democratic Governor Pat Quinn. However, Pritzker and his administration decided to expand other legislation, including the new Cannabis Regulation and Tax Act (CRTA), to further assist Illinoisans with criminal records.

On July 31, 2019, Governor Pritzker signed into law amendments to the Health Care Worker Background Check Act, aimed at easing the path to healthcare jobs involving “direct care” for those with records of convictions for crimes that would typically disqualify them for listing on the Health Care Worker Registry. One must be listed on the health care worker registry to qualify for most “direct care” jobs in hospitals and long-term care facilities in Illinois. The list of disqualifying criminal offenses can be found here.

The amendments allow such workers, with the assistance of certain “workforce intermediaries” and “organizations providing pro bono legal services” – to petition the Illinois Department of Public Health to seek “rehabilitation” waivers to be added to the registry, before they apply for jobs. The full text of the new law can be read here.

Separately, as we previously wrote about here, Governor Pritzker signed into law the Cannabis Regulation and Tax Act (CRTA) which, aside from decriminalizing the recreational use of marijuana, calls for the expungement of certain criminal records involving cannabis-related crimes. Specifically, the law provides for automatic expungement of arrest records for marijuana possession under 30 grams. For convictions involving more than 30 grams but less than 500 grams, or cannabis convictions accompanied by an arrest or conviction for another offense, individuals and prosecutors will be able to petition the courts for expungement. Experts estimate the new law will allow up to 800,000 Illinois residents to clear their records.of marijuana convictions.

Despite these new laws, it remains important for employers in certain situations to avoid hiring candidates with certain conviction records from certain jobs, particularly from safety sensitive jobs. Applicants who have engaged in criminal conduct may still pose an unacceptable level of legal risk for the employer. For example, employers may face criminal and/or civil liability for employee misconduct, including liability for negligent hiring claims. Indeed, on September 24, 2019, an Illinois Appellate Court underscored this very risk when it upheld a record-breaking $54M+ jury verdict against a trucking company whom it found had “negligently hired” a commercial driver with a past conviction for “road rage” and other driving offenses, after the driver had struck and permanently injured another driver while delivering the employer’s freight. You can read the court’s ruling here.

In addition, employers must continue to comply with the myriad of other (sometimes conflicting) federal, state and local laws that govern when and how employers may or may not conduct criminal background checks or use criminal history to screen applicants and employees, including Title VII, the Fair Credit Reporting Act and other industry-specific laws. For example, some federal laws prevent certain convicted persons from employment as bank workers, airport security screeners, federal law enforcement officers, and others. Other state and federal laws require inquiries about rests, such as the Securities and Exchange Act of 1934. At the same time, some states’ and municipalities’ anti-discrimination laws may restrict employment decisions based on criminal histories,

For all these reasons, as these new laws bring more previously-incarcerated individuals back into the workforce, employers would be wise to confer with a qualified employment attorney to refresh their hiring and background check practices.

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Gary Savine is an Illinois employment lawyer and founder of Savine Employment Law, Ltd. in Chicago. Gary regularly advises human resources professionals on recently enacted employment laws.

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