Chicago’s newly elected mayor Brandon Johnson signed amendments April 24 to Chicago’s “no box” ordinance, which took effect immediately and applies to all Chicago employers. Reflecting updates the Illinois legislature made to the Illinois Human Rights Act in 2021, the amendments require Chicago employers to conduct an individualized assessment before basing an adverse employment action on an individual’s criminal record, and impose requirements notice of prior adverse action and final adverse action when making such decisions.
The new requirements are found in Section 12 of the ordinance (O2023-1329), which modifies Section 6-10-054 of the Chicago Municipal Code.
CHICAGO ‘BAN THE BOX’ ORDINANCE
In January 2015, Chicago passed a “ban the box” law intended to restrict the use of criminal records by employers in employment screening. This legislation largely replicated the requirements of an Illinois state law called the Job Opportunity for Qualified Applicants Act (JOQAA) enacted at the same time, but with some major differences.
In particular, the Chicago ordinance (1) applied to Chicago employers of any size, while the Illinois JOQAA applied to employers with 15 or more employees nationwide, (2) required employers to report to applicants on the basis of rejection if the decision was based on the applicant’s criminal record, and (3) imposed harsher penalties for violations.
AMENDMENTS TO CHICAGO STATE LAW ORDINANCE REQUIREMENTS
In March 2021, Illinois amended the Illinois Human Rights Act (IHRA), impose additional requirements on Illinois covered employers and supplement the JOQAA.
Recent amendments to the Chicago ordinance contain the following requirements, which largely follow the state changes made in 2021:
Individualized Assessment
An employer may not use a conviction record as the basis for refusing to hire, segregate, or act with respect to recruitment, hiring, promotion, job renewal, selection for training or apprenticeships, termination, discipline, tenure, or terms, or privileges and conditions. of employment unless (1) there is a “substantial relationship” between the individual’s criminal offense(s) and the job sought or held; or (2) the employer believes that the person poses an unreasonable risk to the property or safety or welfare of specific persons or the general public.
The law lists six factors that an employer must consider when evaluating whether to make a decision based on a conviction record:
- The time elapsed since the conviction
- The number of convictions that appear on the conviction record
- The nature and severity of the sentence and its relationship to the safety of others.
- The facts or circumstances surrounding the conviction
- The age of the employee at the time of the conviction.
- Evidence of rehabilitation efforts.
Notice prior to adverse action
If an employer makes a preliminary determination that an individual’s conviction record may result in adverse employment action, the employer must provide a written notice of prior adverse action to an applicant or employee that includes the following information: (1 ) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the employer’s preliminary decision and reasoning for the disqualification; (2) a copy of the conviction records, if any; and (3) an explanation of the person’s right to respond to the decision before it becomes final.
Employers must provide the individual at least five business days to respond to the notice before finalizing their decision. If the individual responds on time, the employer must consider the response.
Final Notice of Adverse Action
If, after the five business day period has elapsed, the employer makes a final decision to disqualify or take adverse action alone or in part because of the individual’s conviction history, the employer must notify the individual of its final decision in writing.
This final adverse action notice must include (1) notice of the disqualifying conviction(s) or anything else in the conviction record that is the basis for the employer’s final decision and reasoning for the disqualification ; (2) any proceedings the employer maintains where the individual can challenge the decision; and (3) information about the person’s right to file a charge with the Chicago Commission on Human Relations (CCHR).
RESTRICTIONS ON THE CONSIDERATION OF ARREST RECORDS
Like the IHRA, the Chicago amendments also prohibit employers from consulting or using arrest records in making employment decisions. Arrest records are defined in the ordinance as “(1) an arrest that does not lead to a conviction; (2) criminal records of minors; or (3) criminal history information ordered, expunged, sealed, or seized pursuant to Section 5.2 of the Criminal Identification Act.”
However, like the IHRA, employers may obtain and rely on “other information indicating that a person actually engaged in the conduct for which he or she was arrested.” The CCHR or the Illinois Department of Human Rights provide little guidance regarding the types of “other information” an employer may rely on and the circumstances under which such information indicates that the person actually engaged in the conduct for which it was claimed. she was arrested. Therefore, employers should consider the risks associated with basing an adverse action solely on an arrest record before doing so.
PENALTIES
The amendments did not change existing sanctions; however, the CCHR has the authority to impose fines for violations ranging from $100 to $1,000 per violation and any City licensee may be subject to “license discipline” (including suspension and revocation). Each day that a violation continues constitutes a separate and distinct offense.
NEXT STEPS FOR CHICAGO EMPLOYERS
Employers that comply with the 2021 IHRA amendments have few updates to make to their pre-hire and post-hire background check processes and procedures. However, they must immediately update their final notices of adverse action to include a provision notifying Chicago-based applicants and employees of their right to file a charge with the CCHR. They must also ensure that their individualized assessment and adverse action prerequisites align with state and local requirements.
Chicago employers with fewer than 15 employees, who were not previously subject to the more stringent IHRA requirements, should review and update their background checks and other policies related to criminal history consideration.
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