Millions of Americans have a criminal record and they all understand how tough it is to compete in today’s increasingly competitive job market. Federal and state laws that limit how employers can use criminal records in making job decisions do already exist (discussed below) but those with convictions on their record still face an uphill battle in their search for employment.
Although it is far from being a level playing field, groups like the Chicago-based Workers Center for Racial Justice have been on a mission to “[end] discrimination against the formerly incarcerated” and their most recent efforts paid off last month when Illinois expanded their “ban-the-box” policy to include private employers.
Job Opportunities for Qualified Applicants Act
The “Job Opportunities for Qualified Applicants Act” (JOQAA) was signed into Illinois law by Governor Pat Quinn on July 19, 2014. Under ‘JOQAA’ employers and employment agencies are no longer able to consider or ask applicants about their criminal record or history until they have been deemed qualified and an interview is scheduled or a conditional job offer is made. This new law will take effect on January 1, 2015, and applies to all private sector employers who employ 15 people or more. However, ‘JOQAA’ does not apply to three specific categories of job applicants:
- an employer who is required by state or federal law to exclude applicants with certain criminal convictions;
- an employer whose workers are employed under the Illinois Emergency Medical Systems Act; or
- if a standard fidelity bond or an equivalent bond is required and a person’s criminal conviction of a specific crime would disqualify them from getting the bond. In this case the employer is able to ask if the applicant has ever been convicted of any crimes that would disqualify the applicant.
Employers are still required to notify applicants in writing of any disqualifying offenses due to federal or state law or the employer’s policy. Furthermore, the Illinois Department of Labor will be in charge of enforcing ‘JOQAA’, and will be able to impose the following civil penalties:
- For the first violation, a written warning is issued and the employer has 30 days to correct the violation
- A second offense OR failure to correct the first violation within 30 days of notice will result in fine of up to $500
- A third offense OR failure to correct the first violation within 60 days notice will result in an additional fine up to $1,500
- Any additional violations or if the first violation is not corrected within 90 days will result in additional fine of up to $1,500 for every 30 days that pass without compliance.
Furthermore, any money received from the fines will be put into the Job Opportunities for Qualified Applicants Enforcement Fund, which will be used to enforce an employer violations. In any suits brought in any circuit court or any administrative adjudicative proceedings, the Attorney General will represent the Illinois Department of Labor. Additionally, JOQAA does not include a private right of action, so any violations will have to be brought to the Illinois Department of Labor for further investigation. Although the act affects the timeline and way in which employers obtain information about applicants’ criminal records, it does not bar employers from declining to hire applicants who have criminal records. However, not hiring an applicant because of a criminal record could potentially make the employer liable under discrimination laws, as well as open them up to scrutiny from the Equal Employment Opportunity Commission or the Illinois Human Rights’ Act.
Illinois Laws Protecting Job Applicants with a Criminal Record
The Illinois Human Rights’ Act limits the ability of employers to use a job applicant’s criminal record in making hiring decisions. Under this legislation, the following two scenarios are deemed civil rights violations:
- An employer asks about a job applicant’s arrest record, or uses the fact that an applicant has been arrested as a basis to refuse to hire.
- An employer asks about a job applicant’s criminal history record that has been ordered expunged, or uses this information as a basis to refuse to hire.
It should be noted that the Illinois Human Rights’ Act doesn’t prohibit employers from using “other information” to figure out if a person actually engaged in the conduct for which they were arrested.
Federal Laws Protecting Job Applicants with a Criminal Record
The Fair Credit Reporting Act is a federal law that is enforced by The Federal Trade Commission – a federally funded organization which acts as the U.S. consumer protection agency. This law defines the rights U.S. citizens have when applying for a job and employers’ responsibilities when using criminal records and other background information to make hiring decisions.
Key Provisions (as related to background checks):
- Employers are NOT permitted to get any credit or background report on a job applicant without the applicant’s permission, and employers must tell applicants that they might use the information in the report to make a hiring decision.
- Before an employer denies an application for employment based on information from a background report, they must provide the applicant with a copy of the background report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act. If the applicant finds errors in the background report and contacts the company who issued it, that company has an obligation to conduct a reasonable investigation. If the investigation finds information that is inaccurate, the company who issued the report must send an updated copy to the employer upon request.
- After an employer decides to deny an application for employment based on information from a background report, they are obligated to tell the applicant and include in the notice:
- Name, address, and phone number of the company that supplied the background information;
- a statement informing the applicant that the company that supplied the information had nothing to do with the hiring decision and can’t provide an explanation for it; and
- a notice of the applicant’s right to dispute the accuracy of any information in the report and to get an additional report from the company that supplied the background report upon request within 60 days.
If an employers adopts a policy telling applicants not to apply if they have a criminal record, it could be considered discrimination under Title VII of the Civil Rights Act of 1964. The number of African Americans and Hispanics arrested in the U.S. is disproportionate to their representation in the general population. This law states that the issue is whether an employer’s policy on hiring applicants with a criminal record disqualifies a disproportionate number of people protected by Title VII.
Takeaway
For those of you who have criminal convictions on your record – the Job Opportunities for Qualified Applicants Act is not going to eliminate your disadvantage, but it is a step in the right direction. I promise you that we are not the only ones who believe in second chances. Keep your head up and use this opportunity to show potential employers you are the best person for the job and shouldn’t be defined by your past.
Being criminal defense attorneys in Chicago, we see how criminal law matters affect people’s lives everyday. It’s this type of consequence people don’t consider when accepting a plea bargain. When charged with a crime, do your due diligence; get a few opinions on your case to make sure you know all of your options and can make an informed decision on how to proceed.
Chicago Criminal Lawyers – Motta & Motta LLC
We are here to help. Our criminal defense attorneys are passionate about protecting clients’ rights and providing the best legal defense possible. If you are facing serious criminal charges in the Chicagoland area and are adamant about your defense, give us a call at (312) 281-9911 or send an email. As a courtesy to our clients, both Partners at Motta & Motta LLC – Bob and Alison Motta – are available to take calls 24/7.
If you have any questions about the Job Opportunities for Qualified Applicants’ Act or would just like to share an opinion on this topic, leave a comment below and we’ll get a discussion started!
