Changes to Illinois’ Background Check Compliance: What Happens When an Applicant Fails their Background Check?

It is important that an employer is consistent in making this determination for every potential employee that has a criminal record. Detailed documentation regarding this determination will assist in establishing the employer’s compliance.

2. Pre-Adverse Action Notice Requirements

After an employer determines that the conviction disqualifies the employee for the position, the employer must follow new pre-adverse action notice requirements that are in addition to the Fair Credit Reporting Act (“FCRA”) notice requirements. This new notice to the employee must include:

• notice of the disqualifying conviction(s) that are the basis for the decision and the employer’s reason for disqualification;
• a copy of the conviction history report (if one exists); and
• an explanation of the employee’s right to respond to the notice before the decision becomes final.
  

The notice must inform employees that their response may include, but is not limited to, the following: submission of evidence challenging the accuracy of the conviction record, or evidence of mitigation including rehabilitation. The employer must provide the individual at least five business days to respond and must consider any response before such decision becomes final.

3. Post-Adverse Action Notice Requirements

The new law also adds a post-adverse action notice requirement, which again is in addition to the FCRA requirements. Following any final decision disqualifying an employee the employer must notify the employee, in writing, of the following:

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

Employers should be prepared to send such notice without delay as soon as a final decision is made.

As with any new legal changes, employers should review their handbook and procedures to ensure both are compliant and should reach out to counsel to determine if changes need to be made. Further, it is important that employers are prepared to send these pre- and post- adverse action notices and ensure that such notices are complaint with the Illinois Human Rights Act. If you need assistance in reviewing or adapting your policies/notices, please contact Elizabeth M. Roberson or a member of our Labor and Employment Law Team for assistance.

Disclaimer. The contents of this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult with counsel concerning your situation and specific legal questions you may have.

Practices

It is important that an employer is consistent in making this determination for every potential employee that has a criminal record. Detailed documentation regarding this determination will assist in establishing the employer’s compliance.

2. Pre-Adverse Action Notice Requirements

After an employer determines that the conviction disqualifies the employee for the position, the employer must follow new pre-adverse action notice requirements that are in addition to the Fair Credit Reporting Act (“FCRA”) notice requirements. This new notice to the employee must include:

• notice of the disqualifying conviction(s) that are the basis for the decision and the employer’s reason for disqualification;
• a copy of the conviction history report (if one exists); and
• an explanation of the employee’s right to respond to the notice before the decision becomes final.
  

The notice must inform employees that their response may include, but is not limited to, the following: submission of evidence challenging the accuracy of the conviction record, or evidence of mitigation including rehabilitation. The employer must provide the individual at least five business days to respond and must consider any response before such decision becomes final.

3. Post-Adverse Action Notice Requirements

The new law also adds a post-adverse action notice requirement, which again is in addition to the FCRA requirements. Following any final decision disqualifying an employee the employer must notify the employee, in writing, of the following:

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

Employers should be prepared to send such notice without delay as soon as a final decision is made.

As with any new legal changes, employers should review their handbook and procedures to ensure both are compliant and should reach out to counsel to determine if changes need to be made. Further, it is important that employers are prepared to send these pre- and post- adverse action notices and ensure that such notices are complaint with the Illinois Human Rights Act. If you need assistance in reviewing or adapting your policies/notices, please contact Elizabeth M. Roberson or a member of our Labor and Employment Law Team for assistance.

Disclaimer. The contents of this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult with counsel concerning your situation and specific legal questions you may have.

Practices