At Osborne Employment Law, we believe that an individual should not be dragged down their entire life because of a past mistake. You have the right to be evaluated fairly based on your skills, experience, and rehabilitation, rather than being forever defined by a conviction.
Fortunately, Illinois law provides robust protections for workers with a criminal history. If you have been denied employment, terminated, or subjected to adverse employment actions due to a past conviction, your rights may have been violated.
The Illinois Human Rights Act & The Employee Background Fairness Act
In 2021, the Employee Background Fairness Act (EBFA) was signed into law, adding “Conviction Record” to the list of protected classifications safeguarded from discrimination under the Illinois Human Rights Act (IHRA).
Under Section 2-103.1(A) of the IHRA, it is a civil rights violation for any employer to use a conviction record as a basis to refuse to hire or to terminate an individual. There are only two legal exceptions that permit an employer to disqualify a candidate based on their record:
- There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held.
- The granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
When making this determination, the employer cannot simply reject an applicant outright. The law requires employers to carefully consider six specific mitigating factors:
- The length of time since the conviction.
- The number of convictions that appear on the conviction record.
- The nature and severity of the conviction and its relationship to the safety and security of others.
- The facts or circumstances surrounding the conviction.
- The age of the employee at the time of the conviction.
- Any evidence of rehabilitation efforts.
The Strict “Interactive Assessment” Process Employers Must Follow
If an employer reviews your background check and believes your conviction is disqualifying, they are legally required to engage in an “interactive assessment”. This is a strict, multi-step process designed to give the employee a fair chance to explain themselves before a final decision is made.
- Step 1: Written Preliminary Decision. The employer must provide written notice of its preliminary decision. This written notice must include the basis for the decision, a copy of the conviction history report, and an explanation of the employee’s right to respond.
- Step 2: A 5-Day Response Period. The employee must be afforded at least five (5) business days to respond to the preliminary written notice. The employee can use this time to challenge the accuracy of the conviction report or provide evidence in mitigation, such as rehabilitation efforts.
- Step 3: Written Final Decision. The employer must consider the information submitted by the employee before making a final decision. If the employer declines to reverse its preliminary decision, it must issue a final decision in writing. This final notice must include the basis for the decision, a notice of the disqualifying conviction, an explanation of any internal procedures to challenge the decision, and a notice of the employee’s legal right to file a charge with the Illinois Department of Human Rights (IDHR).
Common Employer Violations
Unfortunately, Illinois employers frequently fail to abide by the law. Instead of navigating the required interactive process, companies often hastily rescind job offers over a quick phone call. They regularly fail to provide a written preliminary decision, fail to offer the mandatory five-day response period, or neglect to inform applicants of their right to file a discrimination charge.
When caught violating the law, employers often try to defend themselves by claiming they “substantially complied” with the statute by verbally discussing the background check with the applicant. However, the fundamental purpose of the IHRA’s interactive assessment is to establish a memorialized, written record of the employer’s decision-making process. Verbal phone calls and off-the-cuff rejections are the exact opposite of what the law demands.
Our Firm’s Experience Defending Your Rights
Osborne Employment Law has experience holding employers accountable for conviction record discrimination. We successfully pursue claims against companies that prematurely withdraw employment offers, fail to provide proper written notices, and ignore the mandatory interactive assessment process. We know the tactics employers use to try and escape liability, and we fight vigorously to ensure our clients’ rights are vindicated.
Contact Us Today for a Consultation
If you believe an employer has discriminated against you because of a past conviction, or if they rescinded a job offer without following the proper written notice procedures, contact an employment attorney immediately. Contact Osborne Employment Law today to learn if you are entitled to compensation.