Background Check: Illinois New Law of 2023 (6 Steps to Follow)
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If you are searching for a job or about to hire an employee, you should know that new laws have impacted a background check, Illinois has six steps to follow in the process now. Last year, a new act was passed that limits how and when a background report is conducted on a potential employee, as well as what information you can actually use in 2023.
The Illinois Job Opportunities for Qualified Applicant Act was passed recently to give employment seekers the best opportunity to get a new job and to provide companies with the opportunity to hire from a wider pool of applicants, including those who may have been disqualified because of past criminal behavior.1
Employers must now follow six important steps when checking and using conviction and criminal history reports available to the public. This means that when conducting a background check, Illinois processes have been altered, and knowing how to remain compliant with legal statutes can help you avoid violations.
What is the Illinois Background Check Act? How Does it Apply to a Background Check?
The Illinois Job Opportunities for Qualified Applicants Act is a law designed to protect applicants from disqualification, based on their criminal records, convictions and other unlawful behavior. This increases the number of people who can be considered for a job in the state, despite a criminal past.
A background check is typically conducted to screen someone’s criminal history, education, qualifications, and previous employment. Some background checks also provide information on credit history, driving reports, and address verification. Information from the US credit bureau isn’t typically included on traditional pre-employment background checks, but can be included for specific positions (like those for executives for financial industry applications).
There are many different types of background checks, with various levels of investigation, (you can learn more about the most comprehensive background check types by visiting the state’s Bureau of Identification website and clicking on one of the quick links). The most basic, however, searches (local) state specific criminal history information, by a person’s name.
Six Steps to Follow When Reviewing Criminal Illinois Court Records Found on Background Checks
When conducting a pre-employment background check, Illinois laws outline the process for employers to follow. Along with following rules included in the law, any information found should be vetted properly before being used to make a decision. It is also important that any results from a criminal record used to make a negative decision is documented carefully.
There are six steps to perform when reviewing any information delivered through Illinois court records.2
- Step One: Determine How Long Has it Been Since the Conviction
The amount of time between the background check and the conviction will make a difference when determining whether the charge can disqualify an employee. For example, a recent charge within the last year or two can be considered relevant. If the Illinois state police charge is over 10 years old, it likely won’t hold as much weight. Recent records are more likely to signify the idea that the conviction will hinder the candidate’s ability to do the job.
- Step Two: Note the Number of Convictions on the Record
The number of convictions on a person’s public record will also contribute to whether or not the charge can be factored into the decision. A single minimal conviction may not hold enough weight to be considered in the person’s job application. This, of course, would also depend on the severity of the charge in question. Multiple convictions of similar charges generate a larger red flag. If multiple convictions are found on a record, they should be documented.
- Step Three: Determine How Severe the Conviction is And How it Would Relate to the Job
If the charge is a misdemeanor that has nothing to do with the job at hand, it probably won’t substantiate not hiring the employee. A severe conviction such as a sexual assault against a child when hiring for a daycare position is directly related. Determining whether the conviction history is related will make a huge difference in whether or not it can be used to impact potential hiring.
- Step Four: Get As Many Facts As You Can Relating to the Conviction
If you find a conviction on the history that is recent, severe, and related, you will then want to make sure you have all of the facts. Researching the public charge can help you determine the actual details of the case as well as the punishment, and severity. If you have questions about a conviction, you can always ask the candidate to explain it to you. Document all of the facts that you locate and keep them in a file.
- Step Five: Calculate How Old the Candidate Was at the Time of the Conviction
The age the candidate was at the time of the criminal offense will directly relate to whether or not the charge in question can be used against them during the hiring process. If the candidate was significantly younger than they are at the time of the check or were a minor when the offense occurred, there is a reasonable doubt as to whether the charge can count against their employment. Alternatively, if the candidate was around the same age they are currently at the time of the offense, the reason to disqualify them increases.
- Step Six: Factor in Whether or Not the Candidate Underwent Rehabilitation
If there is evidence that shows rehabilitation for the crime, it will certainly help the case and be a credit to the applicant. For example, if there is a conviction for drugs or alcohol on the record and the candidate sought treatment, it shows a form of accountability. If there wasn’t any effort or the candidate didn’t complete the treatment, it can have a negative impact on their image and their qualifications for the position.
Can an Employee Be Denied a Job Based on Background Check Results?
After all of these steps are taken, the employer will need to decide whether or not they can consider what was found on the background check Illinois to be detrimental to the person’s employment. The employee can be denied the job based on the findings of the background check, assuming they can be substantiated.
If this is the case, the employer needs to be prepared to completely explain their reasoning. By using the info gained from the steps above, a comprehensive report can be created to support their reasoning. This report is then submitted to the state. If proper reasoning can’t be provided and the employer still chooses to not hire the employee based on the findings, they are opening themselves up to potential legal action.
If the findings do not support denying the candidate a job, the employer will be required to stay true to their offer of employment.
How the Illinois Law Impacts Employers
The new law in Illinois doesn’t apply to every employer, so the first step in running a background check in Illinois is to determine if the law applies to you. Any employer with more than 15 current employees is subject to the law. There is an exception to this rule. If your business is legally required to run a background check on an employee to check for certain convictions, your business will still need to follow the new law (such as in the healthcare industry). If you don’t fall within either of these categories, the way you run and access information on a criminal report won’t be the same.
Before you can get started with a pre-employment background check, Illinois now requires that businesses present the candidate with a conditional job offer. At the very least, the person should be confirmed to be qualified and have an actual interview on the calendar. If you want to run a check on the employee, you will also need to notify them and request consent. The candidate has the option to decline, and if this happens, the employer has the right to discontinue the hiring process.
Thanks to the new law, there is some information that you won’t be able to use from a potential employee’s background and fingerprint criminal background info. From expunged records to offenses that aren’t related to the job, there are several items that you won’t be able to factor into your hiring decision. The full list includes:
- Arrests that didn’t result in a conviction
- Expunged or sealed criminal records
- Misdemeanors or felonies that don’t have a relation to the job
The new update in 2023 specifically changed the law to disallow employers from using criminal offenses that don’t relate to the job, but the ‘relation’ is vague. The new regulation allows employers to gauge whether or not the criminal conviction presents a threat.
There are some industries that are exempt (typically because of federal law), including all positions in healthcare. If the job is within the healthcare industry, any listed criminal offense can be used to disqualify the person from being hired. Because health care workers are around many different types of people, a separate rule known as the Illinois Health Care Workers Background Check Act has been passed.
What is the Illinois Health Care Worker Background Check Law?
There are two important components of the health care act. The first component revolves around the collection of fingerprints and a fingerprint background check for all employees working for a health care organization in the state. These background checks are done through a provider that is approved by the Illinois Department of Human Services to run livescan checks. The results from this worker background check is stored in the Health Care Worker Registry. If the criminal background check for any employee comes back with a conviction that disqualifies them, they cannot be hired. The list of disqualifying offenses for a care worker background is lengthy, but can be viewed using a web search of the Illinois State Website.
Applicants still have the opportunity to be hired, despite certain offenses, but there are conditions. In order for this to happen, the health care employer will need to submit a waiver on behalf of the potential employee. If the waiver is approved by the Illinois Department of Human Services, the applicant can be hired.
The second component involves crimes committed by current health care employees. Fingerprint background checks are to be completed every year to make sure that any criminal activity is noted (this is a federal requirement). If an employee commits and is convicted of a listed offense during employment, they will be fired immediately. If any evidence of child abuse or financial wrongdoing is found, these infractions are also grounds for termination. This rule, however, can have some exceptions. As with hiring, a current employee may be excused from the rule by having a waiver submitted to the state on their behalf.
The rules set aside by the health care act are put in place to protect the community. Health care employees work near vulnerable individuals, which is why they are subject to more scrutiny than those in other traditional industries.
Employer Violations of the New Law
Now that the new law is in place, what happens when an employer violates it? A violation of the act can occur when the employer doesn’t follow the guidelines when obtaining a background check or when the employer uses information found inappropriately.4
Penalties for a violation include the following:
- Employer Required to Pay Attorney Fees for the Employee
- Employer Required to Re-Hire the Employee and Pay Back Pay
- Employer Required to Pay Damages or Fines
Each situation is unique and draws specific punishments. It isn’t just the employer who can be liable when violating the Illinois law, the background check company can be responsible as well. In some cases, the company who runs the background check can be considered to have “aided and abetted” the crime.
How Does an Employee File a Complaint?
The process of filing a complaint against an employer involves submitting a complaint form to the Illinois Department of Labor. By navigating to the website and filling out the appropriate form, a complaint is delivered directly to the department. A complaint can also be filed in person at any of the local offices.
When filing a complaint, the employee will be required to submit documentation describing and supporting any claims. The complaint will only be considered valid if submitted within 300 days of the incident. Once a complaint is filed, the matter is taken into the hands of the Department of Labor. In some cases, there is an option to have the case go into mediation. When in mediation, the employee and employer work together with the DOL to find a solution before moving forward with any type of formal processes.
If mediation is declined, the DOL will go right into their formal investigation. There are two potential outcomes that come from a formal investigation. If the complaints are considered to be valid, the DOL will work with the employer to come to a solution. If a solution can’t be reached, they will either sue the employer on the employee’s behalf or provide a notice to the employee giving them the right to sue on their own. If a complaint cannot be validated, the employee will receive notification and a document that gives them the right to sue the employer in court.3
Any decisions provided by the Department of Labor can be appealed by the employee.
What Should You Do if Errors Are Found on Your Criminal History Report?
If during the process of running a background check on yourself you find info that looks incorrect, it’s important to resolve it before a potential employer finds it. While it isn’t necessarily true that it will be enough to cause a background check failure, you’ll want to ensure that only accurate results are provided (you can learn more about what to do if you get a failed background check after a job offer by visiting the EEOC website). If an inaccurate criminal history is displayed, you should contact the arresting office or agency to discuss how to have it removed.
If inaccurate charges are found, you may also have the option to have them removed. In order to have a record removed, it needs to be sealed or expunged. An expunged record is wiped away completely, while a sealed record is simply hidden from the public. There are strict guidelines that determine what type of records can be expunged or sealed. Most states will them on the department of justice’s website.
Thanks to the new law surrounding a background check Illinois, employees have more protection when being subjected to background checks for employment. With the exception of health care industries and home care services, criminal histories and conviction records can only be used against a potential employee if they pose a direct threat relationship to the job at hand. For example, a candidate with a history of child abuse can only be disqualified for positions that would directly relate to working with or around children. Unfortunately, most situations are not that straightforward. With this in mind, employers must follow six important steps before determining whether information on a criminal record can be used against a potential employee.
If after going through these steps the employer decides not to hire the candidate, they are legally required to draft up a full document that details their reasoning. If the reasoning is made clear, the employer could be subject to legal recourse, based on the Department of Labor’s decision. It’s important to know that employers within the healthcare industry do not need to follow these six steps because they are subject to a different set of national laws.
Healthcare providers are required to run a fingerprint background check on every employee before and during employment. If any convictions return that are on the extensive conviction list, the person find Illinois applicant is no longer eligible for employment. This can be overturned in some cases with a waiver submitted to the Illinois Department of Health and Safety. Any change in their criminal history standing will result in an automatic dismissal. These laws are different for healthcare providers to ensure a safe environment for patients.
For those looking to avoid the surprise of a pre-employment background check, it is possible to run one for themselves. This can be done through a free name based search, an official fingerprint background check, or a paid name based check through an online service provider. All three options will provide different pieces of information that would be helpful in different circumstances. The bonus for running a background check prior to an employer lies in the fact that there is an opportunity to correct any mistakes. Criminal records can sometimes be corrected through expungement or having the charge sealed.
While running a background check, Illinois has specific guidelines that are codified by law, and knowing how to make sure that you are in complete legal compliance can prevent costly fines and penalties.
1iProspectCheck. 20 April 2021. Illinois Background Checks: A Complete Guide. 17 Nov 2021. Web. <https://iprospectcheck.com/illinois-background-checks/>
2Gilbert, Scott. 25 March 2021. The National Law Review. Illinois Tightens Restrictions on Employer Use of Criminal Background Checks. 17 Nov 2021. Web. <https://www.natlawreview.com/article/illinois-tightens-restrictions-employer-use-criminal-background-checks>
3Illinois Legal Aid. n.d. Filing an Employment Discrimination Complaint. 18 Nov 2021. Web. <https://www.illinoislegalaid.org/legal-information/filing-employment-discrimination-complaint-eeoc>
4Coy, Kevin. 17 May 2021. Illinois Employers Take Note, Human Rights Law Expanded… Arnal Golden Gregory LLP. 18 Nov 2021. Web. <https://www.agg.com/news-insights/publications/illinois-employers-take-note-human-rights-law-expanded-to-require-interactive-assessments-when-considering-conviction-records-for-employment-screening-purposes/>