Will New Illinois Criminal Records Rule Persuade More Employers to be Truthful About Why They Won’t Hire You?
Because of the clients I represent I frequently hear stories about job offers disappearing after the employer receives a client’s criminal background report.
Even though employers in Illinois are not supposed to take arrest record information into account, I know that job offers are routinely withdrawn for reasons as insignificant as an arrest record or a civil ordinance violation for underage drinking. Yes, really.
Even as They Struggle to Fill Positions, Employer Still Reject Applicants with Criminal Records
Just the other day a client I’ll call “Leslie” told me her lost job offer story. In her case, a single arrest record was the cause.
Leslie remembers when she “knew” the job was going to be offered to her. It was following the third and final interview. There was just one thing left to do before her start date: a criminal background check. Suddenly, the process came to an abrupt halt.
Without mentioning the background check – the only intervening event -- the HR representative told Leslie that the college president had decided to “change course” and hire someone “local” for the position.
Few Employers Willing to Admit Criminal Record is Reason Job Offer Withdrawn
The explanation made no sense to Leslie. Yes, the position was located out of state, but Leslie told the employer she’d be relocating for the position. No fool, Leslie knew why the job offer had been withdrawn, even if the employer didn’t have the decency to tell her.
It’s been my experience that employers are rarely truthful about why they’re withdrawing a job offer. As in Leslie’s case, explanations don’t ring true. Or worse, some employers just stop talking to the job candidate. After leaving numerous unanswered phone messages and emails, the frustrated job applicant gives up trying to get an explanation.
Why it is, time and again, employers are so quick to withdraw a job offer when they learn someone has an arrest or conviction on their record? I thought the employer offered the job to the best candidate it interviewed. Moreover, since COVID, employers say they’re struggling to fill their vacancies. Why then would you reject out-of-hand candidates who want to work?
Will New Illinois Force Employers to be More Receptive to Hiring Someone with a Criminal Record?
Earlier this year, the Illinois Human Rights Act (IHRA) was amended to require that employers advise job candidates who’ve been offered a job of their intention to withdraw that offer due to their criminal background report and, further, give applicants an opportunity to provide additional information about their background that might convince the employer to reconsider its decision.
Even before the Illinois General Assembly passed Senate Bill 1480 and Governor J.B. Pritzker signed the bill into law (Public Act 101-0656) on March 23, 2021 (also date became law), employers were already required under the Fair Credit Reporting Act (FCRA) to give job applicants advance notice if it intended to withdraw a job offer due to a criminal background. Thus, it begs the question whether yet another law can force employers to change their behavior toward applicants who have a criminal record.
Expungement or Sealing: Your Best Offense
As Michael Jordan used to say: “The best defense is a good offense.” If there’s anything in your past that could show up on criminal background report, your best offense is to expunge and/or seal it. Once expunged or sealed, a public records background check will find nothing to report. Leslie could have expunged her record. If she had, she’d be working for the college today.
Until You’ve Expunged or Sealed Your Record, What You Can Do
If your record has yet to be expunged or sealed, the next time you suspect an employer has withdrawn a job offer because of your criminal record, I recommend the following:
Ask the employer for a copy of the criminal background report (you’re entitled to a copy); review it and make sure the information is accurate and belongs to you; and
Get a verbal and written explanation (from the employer) why the job offer was withdrawn.
If the employer’s explanation does not pass the smell test or you receive the “silent treatment,” you might want to file a complaint with the Illinois Department of Human Rights.
Employers need to be reminded that it’s not OK to sidestep both the IHRA and the FCRA’s notice requirements. Ignorance of the law is neither an excuse nor a defense.