Be Careful How You Ask About Criminal Convictions
Illinois has placed new restrictions on how employers may ask about and use an individual’s criminal record when hiring and firing. Watch the video to learn more!
Additional Information
Does Your Job Applicant Have A Criminal Record?
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Transcript:
Last month, we released some information to let everyone know that some things had shifted in regard to employment practices and hiring practices, as it pertains to individuals with criminal records in Illinois. So there was a new law that was passed, and its generic name, if you will, was called Ban the Box. What that particular law did was basically prohibit employers who were looking to hire employees from asking on the application, if someone has a criminal conviction, it also goes a bit further and actually makes some changes in regards to how that is considered when ultimate employment is offered. So first of all, if you have an application process and on your application, you ask about someone’s criminal history, let me just tell you, right now, you need to take that off of your application. You can’t until you’re at least in the interview process, or until you’ve made a conditional offer of employment, you can’t ask about someone’s employment or about their criminal history, okay? So, but you can in those points, at those points. So in the interview process, or at that offer point, you can ask about previous criminal convictions. And then at that stage, then, as you gather that information from the employee, the only time that you can actually choose to make a decision, or a contrary decision regarding their employment as it relates to their criminal history is if that criminal history really does have a substantial relationship with a position that that person is seeking, for the job that they’re seeking.
For example, in our office is, of course, you know, if you’re gonna hire someone who is was convicted for Medicare fraud, and they’re on the Medicare exclusion list, of course, that would have a direct correlation, and we create an undue risk, actually, we create significant problems, as we’ve talked about in other videos and other articles, you know, you couldn’t do that there would be that direct relation and create problems. Another example might be, you know if you’re gonna hire an accountant, and they’re previously convicted of embezzlement from a previous employer, of course, that has a direct correlation or a substantial relationship in regards to their particular position. So those would come into play. But even once you establish that, once you say, Yeah, this has, this is important, right, this has a significant impact on my hiring decision, as it relates to this particular position, there are additional steps that you need to take. Those steps include really kind of reviewing a list of six factors, and then once you’re done reviewing that list of six factors, documenting, of course, you always want to document these things, keep them in a file, specifically in regards to that particular candidate for the position so that if ever challenged, you have the backup for the factors that you consider, and why there is that that substantial relationship with the position that they’re looking for.
So what are those six factors? Well, you know, how long has it been since the conviction? How many times have they been convicted in the past? The nature and severity? How old were they at the time, when the crime took place, right? And then what are the facts and circumstances surrounding that particular conviction? And then last is what are the evidences of rehabilitation efforts. Now, each of those factors must be taken into consideration. And since they must be again, we strongly recommend that you go through a documentation process, and keep that on file for that particular candidate. So first and foremost, make sure that you take off any references to an application. The second thing is to their criminal record questions on any application, take that off. Second is, don’t ask until you get to at least the interview process or until the conditional offer of employment process. And you can ask at that point whether or not they have a criminal conviction, once you’ve gathered the data and regards any previous criminal conviction does it have a substantial relationship? And then you have to go through the six factors to make that decision. And once all of that is completed, then you can make an adverse decision. At that stage, you actually have to notify them in writing and give very specific inclusions that have to be a part of the letter and the notification that you send out to that particular rejected candidate. And so at that stage, we refer you over to the article that we have out there that we just issued back in December. But we wanted to make sure you were aware, and that you had the appropriate procedures in place for your hiring practices because all of this has recently begun and it’s in play. And so we want to make sure that you’re all covered. You just want to avoid any kind of complaints coming from the Illinois Department of Human Rights, and we want to protect you and we want to protect your processes so hopefully this helps you out and we’ll catch you next week.
