Despite Illinois’ Criminal Record Protections Job Seekers Still Face Employment Barriers
Question:
What type of criminal history can an Illinois employer legally consider when making an employment decision?
Under the Illinois Human Rights Act (IHRA), the only criminal history an employer can legally consider is conviction records.
The IHRA bars any consideration of arrest records
Due to the federal Fair Credit Reporting Act's regulation of background check companies, employers routinely receive arrest record information when running a background check.
Employers who rely on arrest record information are in violation of the IHRA.
Given that some Illinois employers continue to deny employment based on someone's arrest history, to safeguard against this practice expunge and seal your record.
Over the past decade, the Illinois General Assembly has enacted several provisions to strengthen protections for residents who have a criminal record, making it easier for them to find employment and obtain occupational/professional licensing.
Despite these protections, ranging from ban-the-box (2015), expanded sealing eligibility (2017), banning consideration of any arrest records (2020), and requiring employers to obtain additional information about a job applicant’s conviction history before withdrawing a job offer (2021), Illinoisans continue to lose job offers due to both convictions and arrests.
While Illinois employers can legally decline to offer someone a job due to a criminal conviction, it is illegal to deny or withdraw a job offer based on an arrest record.
The fact that employers even see arrest record information is due to conflicting federal and state laws: 1) the Fair Credit Reporting Act (FCRA), and 2) the Illinois Human Rights Act (IHRA), 775 ILCS 5/2-103.
FCRA Allows Collection of Arrest Record Information
The FCRA is the federal law that regulates the activity of companies that perform public record background checks for employers and landlords. We refer to these companies as consumer reporting agencies (CRAs).
With few exceptions, CRAs are not regulated by state law. The FCRA also regulates the conduct of employers who hire CRAs to conduct background checks of job applicants and employees. Today, roughly 95% of U.S. companies perform employment-based criminal background checks.
Under the FCRA, CRAs are permitted to report arrest record information that is not more than seven years old.[1] If an Illinois employer does not tell the CRA what information it wants (only conviction records), the CRA will provide both conviction and arrest information. In other words, Illinois employers who do not want to violate the IHRA have an affirmative duty to tell CRAs to refrain from giving them arrest record information.
IHRA Bars the Use of Arrest Records in Making Employment Decisions
Although the IHRA has barred the use of any arrest record information since 2020, some Illinois employers continue to reject job applicants based on this information.
For this reason, I always advise clients of the importance of expunging arrests and sealing any eligible conviction record they have. Once sealed, a conviction can no longer be used to deny someone employment. [2]
Even a record of an arrest without charging – which is not a public record – should be expunged. Where this kind of record can be problematic is when someone is required to undergo a “law enforcement” fingerprint background check through the FBI and/or the Illinois State Police (ISP).
A law enforcement background check differs from a public records search because the agency requesting the search (usually a governmental body) is authorized to receive non-public criminal record information (e.g., juvenile records), including sealed records. While the ISP is restricted from providing adult or juvenile arrest record information, the FBI discloses this information. [3]
Employer Beware: Do You Know How to Read a Criminal History Report?
Earlier this year, I urged a man I’ll call Mike to file a complaint with the Illinois Department of Human Rights against an employer for withdrawing a job offer due to his arrest history.
The facts of Mike’s case were particularly galling because the employer freely conceded, in writing, that it withdrew the offer based on his arrest history.
It’s not often one comes across a situation where an employer admits to rescinding a job offer due to the results of a criminal background check. Usually, in such cases, employers ghost job applicants or provide a flimsy reason for rescinding the offer.
Two Wrongs Don’t Make it Right
As is common today, Mike was made a conditional job offer that turned on the results of his criminal background check. Mike had been arrested twice (resisting arrest and battery to police officer). Neither arrest had resulted in a conviction. Nevertheless, the employer asked Mike to provide additional information about the arrests, including court documentation.
The employer’s first mistake was concluding that Mike’s initial arrest (for resisting) was a conviction. It was not. Mike had been sentenced to supervision – a deferred prosecution. As long as the individual completes their supervision successfully, it does not result in a conviction. Mike had successfully completed his supervision.
The employer’s second mistake was asking Mike about his battery arrest and then taking this information into account. Even if Mike had been convicted of resisting, the employer still wouldn’t have had a legal right to consider his second arrest.
Although acknowledging the battery arrest was not a conviction, the employer justified its decision to withdraw the offer by speculating that the two [non-conviction] arrests reflect a pattern of troubling and violent conduct … with law enforcement. The employer’s unlawful reliance on Mike’s arrest history led it to conclude he posed a workplace safety risk.
What lay people continuingly fail to understand is that an arrest is not proof of guilt. That is why the Illinois General Assembly bars employers from using arrest record information. Employers have no business playing judge or jury.
Conclusion
Despite the Illinois General Assembly’s best efforts, Illinois residents still lose job offers based solely on an arrest record history. The only way to avoid Mike’s experience is to take matters into one’s own hands: expunge and/or seal those records.
[1] There is one exception to the FCRA’s seven-year “lookback” rule. If the job pays a salary of $75,000 or greater, a CRA is not restricted in reporting arrest record information, regardless of how old.
[2] There are a few exceptions with respect to who can take a sealed record into account.
[3] The following examples reflect how an arrest without changing can gum up things: delays in processing an application for a nursing license; summer internship opportunity with a banking institution (juvenile arrest); and seeking the adoption of a child (juvenile arrest). In each example, the subject of the background check had no idea that an arrest record existed.