The IDHR also has issued an FAQ for employers about the new criminal conviction record requirements.
On March 23, 2021, Illinois Governor J.B. Pritzker signed Senate Bill 1480 into law with an immediate effective date. As detailed in our prior Alert, the new law creates a number of new requirements for Illinois employers under the Illinois Human Rights Act (IHRA), the Illinois Equal Pay Act of 2003 (IEPA) and the Illinois Business Corporation Act.
First, Illinois employers’ ability to consider applicants’ and employees’ criminal conviction records when making employment decisions has been further limited and violations will be considered actionable discrimination under the IHRA. Second, employers have a new requirement under the IEPA to obtain equal pay registration certificates from the Illinois Department of Labor (IDOL) on a biennial basis. Finally, most employers who are required to file an annual corporate report that is published by the Illinois secretary of state now also must include employee race, ethnicity and gender composition data―similar to information employers include in the federal Employer Information Report (EEO-1). Our prior Alert detailed all of these new employer requirements. The IDHR also has issued an FAQ for employers about the new criminal conviction record requirements.
What This Means for Employers
The new law requires employers to take immediate action to ensure they do not run afoul of the new criminal conviction nondiscrimination and notification provisions that take effect immediately. Employers who use criminal conviction records in making any employment decisions must ensure that they can establish a “substantial relationship” between the applicant or employee’s criminal conviction at issue and the employment position at issue. Employers also must engage in an interactive assessment of any information provided by the applicant or employee about the criminal conviction. The new Illinois requirements are similar to those set forth in the EEOC’s enforcement guidance for employers’ consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964, however, they are not identical. Finally, employers should review and implement necessary compliance changes to their criminal conviction consideration and notification procedures and processes to comply with the new law. Illinois employers should consult with legal counsel as soon as possible and swiftly enact any necessary changes to their employment policies and practices related to criminal conviction history. At a minimum, employers should contact their background check or other onboarding vendors and ensure that any forms or processes for Illinois applicants and employees are being changed promptly to comply with the new law.
The new equal pay registration certification requirement also obligates employers to thoroughly evaluate the information submitted in light of the significant potential consequences during the IDOL’s review of the employer’s certification. However, employers have three years to prepare for this registration process, and we expect the IDOL to publish registration certification forms and processes that employers should review with counsel for additional compliance requirements.
Finally, Illinois corporations must consider the impact of their EEO-1 employee composition data being publicly available beginning with annual corporate reports filed in 2023. Currently, an employer’s federal EEO-1 report data is only published by the EEOC in aggregate, nonidentifiable formats. With this data becoming publicly available and subject to public scrutiny beginning in 2023, employers should take the opportunity now to reevaluate the accuracy and scope of their EEO-1 reports (e.g., identified locations, operating companies, subsidiaries, etc.) and the internal processes and personnel responsible for preparing the EEO-1 report.
For More Information
If you have any questions about this Alert or have specific questions and concerns related to your operations, please contact Daniel O. Canales, Jennifer Long, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.