['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Illinois, an employer/former employer or agent of an employer/former employer may disclose to a prospective employer upon request, written or oral information about employee/former employee job performance, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer disclosed information that:
- Was knowingly false, or
- Violated an employee/former employee civil right.
Arrest record inquiries
In Illinois, employers may not ask about or use arrest records as a basis for its decision to not hire an applicant or discharge or discriminate in some way during employment. However, an employer can obtain and use other information that proves the person committed the crime that he/she was arrested for.
This is more stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Illinois, employers may use Department of State Police conviction information to evaluate applicant or current employee qualifications and character. However, employers may not ask about or use expunged or sealed criminal records.
This differs from the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Arrest record inquiries
Illinois Human Rights Commission
Conviction record inquiries
Illinois Human Rights Commission
Regulations
Employer immunity from disclosure claims
745 ILCS 46, Employment record disclosure act
Arrest record inquiries
Illinois Comp. Statute 775 Section 5/2-103, Arrest record
Conviction record inquiries
Illinois Comp. Statute 775 Section 5/2-103, Arrest record
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.