Thursday, August 7, 2014

Job Opportunities for Qualified Applicants Act

Public Act 98-0774 known as the Job Opportunities for Qualified Applicants Act (effective January 1, 2015) prohibits private employers (employing 15 or more employees) from considering or requiring the disclosure of an applicant’s criminal record until: 1) it is determined the applicant is qualified for a position and 2) the applicant is selected for an interview.

If no interview is held then no inquiry or disclosure of criminal history may be made until a conditional offer of employment is made by the employer.

The new act is not applied to the following situations: 1) public employers; 2) positions where state or federal law requires disqualification based on criminal convictions; 3) emergency medical services employees; and 4) where a fidelity bond or a similar bond is required for a position and a criminal conviction may prevent the issuance of a bond.

Notwithstanding the Job Opportunities for Qualified Applicants Act all employers, public and private, should be aware of prohibitions contained in the Illinois Human Rights Act (775 ILCS 5/2-103), which make it a civil rights violation for any employer to inquire into or to use the fact of an arrest or criminal history record information ordered expunged, sealed, or impounded as the basis for any employment action.

The Human Rights Act contains an exception for the use of conviction information where state or federal laws or regulations require criminal background checks in evaluating qualifications and character of employees or prospective employees.

Employers should be aware, however, that the Federal Equal Employment Opportunity Commission recently updated its enforcement guidance concerning use of convictions as a disqualifying screening tool. Under the updated guidance, the EEOC stressed that a blanket or targeted exclusion of individuals based on criminal conviction histories may result in a “viable disparate impact claim,” under Title 7 of the Civil Rights Act of 1964.  The basis for this opinion by the EEOC is that national data suggests that certain racial minorities suffer disproportionate incarceration rates and may serve as the basis for the Commission to further investigate employment decisions based on criminal conviction histories. Under Gregs v. Duke Power Company, 401 US 424 (1971), if data shows a disparate impact, the burden then switches to the employer to show that its policy of relying on criminal conviction information is “job related and consistent with business necessity.” The EEOC further suggests that this burden can be met if an employer develops a multi-factored evaluation system concerning criminal convictions which system considers 1) the nature and gravity of the offense; 2) the time that has elapsed since the offense; 3) the nature of the job held or sought; and 4) whether opportunities exist for an individual to demonstrate that the conviction exclusion should not be applied in his or her situation.

Finally, the EEOC guidance states that reliance on a state law requiring disqualification based on criminal convictions will not necessarily insulate an employer from a Title 7 disparate impact claim.

Given the updated EEOC guidance from 2012 and the recent Job Opportunities for Qualified Applicants Act, employers, both private and public, should review employment policies and practices to develop neatly tailored screening tools that will support a job related and consistent with business necessity defense in the event of any individual claim or enforcement action by the EEOC.