Is it possible to use criminal convictions during the hiring process and stay compliant with most state laws?
At first reading, it would seem that using criminal convictions in the state of Illinois has been outlawed. A deeper reading of the Illinois SB 1480 addressing the use of criminal convictions reveals a striking similarity with the process of complying with the Equal Employment Opportunity Commission (EEOC).
As we explained in this prior blog post The Equal Employment Opportunity Commission (EEOC) updated their guidance for employers’ use of criminal background checks in April 2012 to address concerns that criminal background checks have an unintended discriminatory impact on minority groups. When background checks reveal that a candidate has a criminal record, employers should take the time to review the EEOC guidance. Then they can ensure that the nature and gravity of the offense are considered, along with the time that has passed since the conviction and the nature of the position in question.
This excerpt from page 6 and 7 of SB 1480 actually reads very similarly to the EEOC Guidance on the use of conviction records:
Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record, as defined under subsection (G-5) of Section 1-103, as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment (whether “disqualification” or “adverse action”), unless:
(1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held; or
(2) the granting or continuation of the employment would an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
For the purposes of this subsection (A), “substantial relationship” means a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position. (B) Factors considered. In making a determination pursuant to subsection (A), the employer shall consider the following factors:
(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
This law clearly outlines specific cases in which using criminal convictions to influence hiring decisions can be deemed valid. Even still, you may feel some element of risk making these choices based solely on your best judgment.
If you could use some extra guidance, our blog post on developing hiring matrixes and individualized assessments is a great resource to rely on.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through the implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates.com