Illinois is Ready to Ban the Box! How Will This Effect Employers?

The Illinois Legislature passed the Job Opportunities for Qualified Applicants Act (H.B. 5701) on May 29th which will effectively bar private employers with fifteen or more employees from inquiring about an applicant's criminal record history during the application stage of hiring. Bill HB5701 will take effect Jan 1st, 2015 unless vetoed by Illinois Governor Pat Quinn.

Illinois isn't the first state to pass such a law. In fact, the movement known as "Ban the Box" has effectively pushed lawmakers in five states and 49 more local jurisdictions to eliminate questions in regards to criminal history from the application stage of pre-employment.

Why's this Referred to as "Ban the Box"? 
Most employers currently have job applications that pose the question "Have you been convicted of or plead guilty to a criminal offense?" with a check box next to the question and a small space for listing the circumstances. Naturally, an employer wants to protect themselves from people they feel might be unscrupulous in nature, steal from the company, or may hurt fellow employees or clients.  

Disparate What?
The argument made against the use of this question on the application or verbally, is that people who truthfully indicate they have a criminal record of some type, will be excluded immediately or devalued as a viable candidate. Therefore, the theory stands that disclosing the existence of a criminal record on a job application creates a statistical disparate impact against minority applicants. Disparate impact is defined as: "a facially neutral employment practice that has an unjustified adverse impact on members of a protected class". In other words, the employer isn't purposely discriminating based on race (they may not even know the race at this point) yet they are discriminating because the act of passing over applicants that have "checked the box" statistically creates a racial biased towards hiring Caucasians over other minorities protected by the EEOC. For those of your wondering how that conclusion is made, we will include the statistics provided by the Equal Employment Opportunity Commission below.

Equal Employment Opportunity Commission Data compiled for their release of "Enforcement Guidance" (Consideration of Arrests and Convictions) 2012.

• Hispanic men are incarcerated at three times the rate of white men
• Black men are incarcerated at seven times the rate of white men (with one in 15 African-American men incarcerated)

The EEOC concluded that..."Compared to rates of criminal offending among racial groups, members of minority groups are disproportionately arrested and incarcerated, due in large part to increased law enforcement in poor urban areas, disproportionate treatment within the criminal justice system, and societal disadvantages that place minorities at much greater risk of being both offenders and victims of violent crime. Having a conviction may be more an indicator of living in a poor urban area than an indicator of more engagement in crime than other applicants."

So what do I, the employer, need to do?
The Opportunities for Qualified Applicants Act specifies that... "An employer or employment agency may not inquire about or into, consider, or require the disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency, or if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency".

To put it simply... 

1. Remove the "have you been convicted or plead guilty to a criminal offense" question from wherever it appears on your job application before Jan 1, 2015.
2. Do not ask the applicant about criminal record history prior to determining that the applicant's credentials qualify them for an interview or a conditional offer of employment.
3. If criminal records are revealed by the applicant verbally or during the background screening process, take into consideration the type of crime, length of time since the event occurred, and the impact that crime would have, if any, on the position applied for. 

• It's important to note that the process described here (#3) should always be taking place as it is the law under the Fair Credit Reporting Act as well as the more recent EEOC Guidance. 

How will I protect my business and employees if I cannot ask if someone has a criminal record?

Removing the question from your application does not mean you cannot conduct a thorough background check of the applicant. It simply moves your ability to find out about the criminal record back a step so the applicant isn't eliminated before they even get a chance to interview. In theory, leveling the playing field up until an interview or conditional job offer is on the table. At that stage, the employer has invested some time and possibly money into the potential employee making it more likely they will consider the circumstances of a past criminal record as opposed to immediately searching for a new candidate. 

Employers Exempt from this Law.

The Job Opportunities for Qualified Applicants Act bill exempts from its coverage the following employers. 

• Private employers with less than 15 employees on staff.
• Employers who employ individuals licensed under the Emergency Medical Services (EMS) Systems Act.
• Employers subject to state or federal laws requiring exclusion of applicants with certain criminal convictions
• Employers who require a standard fidelity bond where an applicant’s criminal conviction would disqualify the individual for such a bond.

Questions?  Please feel free to call our offices. We're here to help!  800-578-8600 x100 or email us at bjones@safescreener.com.

About the author:
Brad Jones is the Founder and Director of Operations of SafeScreener.com, a background screening agency that has been providing corporations of all sizes with applicant screening services since 2004.  Brad is an active member of the National Association of Professional Background Screeners (NAPBS) and serves on the Chicago Chamber of Commerce's Workplace Well-being Committee.  For more information on applicant screening services, or a free F.C.R.A. Compliance Checklist, please call 888.578.8600 x113 or email bjones@safescreener.com.                                                                                                   
                                                                                                                  
Please note: Any person or entity utilizing a third party to conduct applicant background checks for employment or leasing purposes must follow applicable federal and state laws including but not limited to EEOC Title VII, the Fair Credit Reporting Act and all applicable state laws.  Articles, blogs, newsletter and other materials issued by Brad Jones or any employee of Background Screening Consultants LLC (DBA SafeScreener.com) should not be regarded as, or substituted for, legal advice.