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Arévalo: ‘Ban the box’ law going into effect in 2015

Published: Sunday, July 27, 2014 5:30 a.m. CDT

In June, Gov. Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act. This so-called “ban the box” legislation, which removes questions about convictions from job applications, is the fifth such law nationwide. Illinois follows Hawaii, Massachusetts, Minnesota and Rhode Island in states that have imposed such policies and applied them to private employers. As of 2013, 10 states had adopted similar policies with lesser or varying scopes. This included Illinois, which had a policy applicable to state employment pursuant to an executive order from Quinn. Such policies also have been adopted in about 60 cities and counties around the country.

The National Employment Law Project reports that in the early 2000s, grass-roots organizers in San Francisco and Boston began urging local governments to remove questions about convictions from job applications so that individuals could be judged on their qualifications.

The “ban the box” phrase was coined to describe fair chance policies that removed the “box” in job applications asking about criminal history. NELP’s cited figures indicate there are about 70 million adults across the country with arrests or convictions that often make finding work difficult.

According to NELP, the impact of such inquiries has a chilling effect that discourages individuals from applying to positions and artificially narrows the applicant pool of qualified workers. NELP cites a study reported in The Annals, published by the American Academy of Political and Social Science in May 2009, that found a criminal record reduces the likelihood of a job callback or offer of employment by nearly 50 percent.

Fair chance policies are not intended to prohibit an employer from running a background check, nor do they prevent an employer from considering an applicant’s criminal history when making an employment decision. Rather, they are intended to assist employers by widening the pool of qualified employees.

The Illinois law, which goes into effect Jan. 1, 2015, defines an employer as “any person or private entity that has 15 or more employees as well as any agent of such entities or persons.” In addition, the act applies to “employment agencies” that recruit candidates on behalf of employers.

According to the law, an employer or employment agency “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that [he or she] has been selected for an interview by the employer or employment agency.” The act adds that in the event there is no interview, an inquiry about criminal record or history cannot be pursued until after a conditional offer of employment has been made.

The law does contain exceptions. Specifically, the act does not apply if employers are required to exclude applicants with criminal convictions due to federal or state law requirements. One such instance involves banks, which are subject to FDIC regulations that prevent the employment of individuals with convictions involving crimes of dishonesty, breach of trust or money laundering. In addition, the act’s requirements do not apply to positions where an individual would be disqualified from obtaining a fidelity bond. Thus, a candidate for a job handling ERISA plan assets, who is required to obtain a fidelity bond, would need to disclose criminal convictions without the potential employer running afoul of the law. Lastly, the act’s requirements do not apply to those employing individuals licensed under the Emergency Medical Services Systems Act.

The act also empowers the Illinois Department of Labor with enforcement and rule-making authority. Specifically, the department will have the ability to investigate violations and impose penalties. A first time violation will result in a written warning, with notice of potential fines for subsequent violations and 30 days to remedy the violation. Second and third violations or the failure to remedy the first violation within 30 and 60 days will result in fines between $500 and $1,500. Additional violations or the failure to remedy the first violation within 90 days will result in additional $1,500 fines for every 30 days without compliance. Assuming an employer fails to satisfy the fines, the department will be able to pursue recovery in court. Fines would be used to pay for enforcement of the act.

In anticipation of this act going into effect in 2015, employers will need to review their hiring practices and policies. They will need to review job applications and delete the “box.” Moreover, special attention will have to be paid to the interview process to ensure that those conducting interviews do not ask improper questions. Ensuring compliance with the law will require knowledge, preparation, training and consistent application.

• Carlos Arévalo is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Reach him at 815-459-2050.

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