Does Your Job Applicant Have a CRIMINAL RECORD?

In 2015, Illinois passed what is known as the “Ban the Box” law (part of the Illinois Human Rights Act) that prohibits employers from asking about a job applicant’s criminal history until the applicant is notified that they will be interviewed or the applicant is conditionally offered employment.  Recently the Illinois Human Rights Act (“IHRA”) was amended to tell employers how they may use criminal history information, once it is obtained.

As of March 23, 2021, the Act makes it a civil rights violation for an employer to refuse to recruit, hire, train, promote, terminate, or take other action regarding employment of an individual, based solely on that individual’s criminal conviction record, unless certain specific conditions are met. “Conviction record” means information that a person has been convicted of a felony, misdemeanor or other criminal offense, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority. 

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It is important to note that the IHRA applies to all employers of one or more employees; thus, the criminal conviction employment amendment applies to all physician offices.

The only exceptions to the new employment prohibition concerning criminal conviction records are when at least one of the following conditions exists:

• There is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
• 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.

Under the new law, “substantial relationship” means that the employment position could easily provide an opportunity for the applicant to commit an offense similar to the offense in the criminal conviction.  In that situation, the law would permit the employer to disqualify the applicant if the other requirements are met.  For example, a physician office that is looking to hire an accountant and biller might be justified in refusing to offer the position to an applicant who was convicted of embezzling the previous employer’s funds by falsifying records.  Similarly, it might not violate the law to dismiss an individual who works as a chiropractic assistant performing hands-on patient care tasks (e.g., hot and cold packs or EMS) who is convicted of a violent assault (which would fall into the second category of posing a safety risk to patients).  This approach requires a case-by-case assessment based on specific facts.

In evaluating the above, the IHRA lists six factors that employers are required to consider in determining whether an applicant is disqualified due to a criminal conviction:

1. the length of time since the conviction;
2. the number of convictions that appear on the conviction record;
3. the nature and severity of the conviction and its relationship to the safety and security of others;
4. the facts or circumstances surrounding the conviction;
5. the age of the employee at the time of the conviction; and
6. evidence of rehabilitation efforts.

If, after considering the above factors, the employer makes a preliminary decision that the individual’s conviction record disqualifies him/her from the position, the employer must give the individual written notice of its preliminary decision, and provide the individual with at least five (5) business days to respond. This preliminary notice must include:

• notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
• a copy of the conviction history report, if any; and
• an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final. The explanation shall inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.

In making its final decision, the employer must consider any evidence submitted by the employee and, if an adverse determination is made, the employer must notify the individual, in writing, of the following:

• notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer’s reasoning for the disqualification;
• any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
• the right to file a charge with the Illinois Department of Human Rights.

The Illinois Chiropractic Society strongly encourages doctors to carefully document each of the above steps taken and maintain that documentation for no less than three (3) years.

Editor’s note:  The Human Rights Act law discussed above does not alter the Health and Human Services Office of the Inspector General recommendation for physician offices who provide Medicare services to refrain from employing any individual on the Medicare Exclusion List (practitioners and all other employees who have been formally excluded from participating in the Medicare program).  See detailed article here.