Criminal Background Check and “Ban the Box”

Effective January 1, 2015, Illinois legislature enacted a law that requires private employers with 15 or more employees to remove “the box” on their employment applications which asks whether or not the applicant has been convicted of a felony.  Thus the name “Ban the Box”.

Some employers ask that potential applicants complete an employment application before an interview or job offer.  In the past, most employment applications asked whether or not the person has been convicted of a felony or a similar question.

With the new law in place, employers are now compelled to consider only whether or not the applicant is “qualified” for the job based on information provided by the applicant and prior to an interview.  Once a decision has been made to conduct an interview or provide a conditional offer of employment, then the employer may require a criminal background check.

There are three exceptions to this rule:  1) if federal or state law excludes specific criminal convictions because of the nature of the position being applied for, 2) if a fidelity or equivalent bond is required and certain convictions would disqualify the candidate, or 3) the position requires an Emergency Medical Services (EMS) license.

Here are some guidelines to help your business stay in compliance:

1. If you rely solely on applications for interview selection, remove any questions relating to criminal history, unless required by law. Or consider using a skill based questionnaire to see if they have the basic skills for the job being applied for.  Then, once you have brought the candidate into an interview or a conditional offer of employment has been made, you may require a criminal background check.
2. Ideally and if feasible, do not have the applicant complete an application or agree to a criminal background check until after the applicant has accepted a conditional job offer.
3. Make it very clear that the job offer may be rescinded if the background check does not meet your standards.

There are penalties against employers for not following the law ranging from a written warning up to a $1,500 fine for repeated violations or failure to remedy past violation(s).  The Illinois Department of Labor is the monitoring agency and does not allow private citizens to sue on their own behalf.

If you have any questions, please contact the Law Offices of McLaughlin & Associates, P.C. at 630-230-8434.

Written By:  Kerry Rieder-McLaughlin, HR Consultant