As published by the State Rules Register:
Illinois has passed "Ban the Box" legislation which will be effective January 1, 2015 (HB 5701). This act is unique unto Illinois in regard to when an employer may inquire into the criminal record of an applicant as well as what employers/employees are exempt.
The following employers or employees are exempt from this law:
Employers having less than 15 employees during the current or past calendar year. "Any agent" of an employer is included in the employee count. Since the term "agent" is not defined, this creates significant ambiguity in the act and will certainly lead to litigation because your accountant, attorney, etc. can be an agent at times for certain purposes. Are they counted?
Employers who are required by law to deny employment to those with certain convictions.
Employees who must be bonded and where certain convictions will disqualify that person from being bonded.
Employees who are covered by the License Emergency Medical Services Systems Act ("EMT's").
Employers may notify applicants that certain convictions will disqualify them from employment. This will help prevent the processing of those who cannot be hired. This applies to all employers, not just those within the above exceptions.
The act specifically applies to "employment agencies". This is defined as a company that: "Procure for employees opportunities to work for an employer". Is this a headhunter? Is it an employment placement service? Is it a college placement office? Does it apply to a temporary employment service? Again, the law is vague, but it would appear that it could cover all of the above.
When may an employer or an employment agency inquire of an applicant's criminal history? Illinois has adopted a two level approach:
If an employer conducts interviews: it may inquire after the employer determines if the applicant is qualified for the position and has selected the individual for an interview. This suggests that an employer may obtain criminal record information before the interview, but after the applicant is notified of the interview.
If the employer does not do interviews, then the criminal history inquiry is delayed until after a conditional job offer has been made.
Pure "Ban the Box" laws do not directly apply to background screening companies. These laws do not restrict what a CRA can report. These laws simply set up the timing when an employer may request information in regard to an individual's past criminal record. These laws do not restrict the obtaining of employment or education verifications, social security number verifications, civil judgments, tax liens or even credit reports, to name a few.
There does not appear to be a private cause of action under this law. The Department of Labor can assess fines and bring civil actions to enforce the Act and collect fines.