Compliance Update – Chicago Expands Criminal History Screening Ordinance

Jun 14, 2023 @ 12:54 PM EDT | Global, United States

On April 24, 2023 the City of Chicago Mayor signed Ordinance O2023-1329 into law which amends and expands the existing ordinance that restricts employer’s use of criminal history for employment purposes. The newly amended ordinance in many respects mirrors the Illinois Human Rights Act of 2021. The ordinance became effective immediately following passage and publication of the ordinance.

There are several requirements in the ordinance amendments for Chicago employers when using criminal history. First employers may not use an applicant’s/employee conviction record for employment unless:

• There is a substantial relationship between the individual’s criminal offense(s) and the job sought or held; or
• The granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

To determine if the above criteria are met, employers must conduct an individualized assessment in which they consider six factors, each of which are included among the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. These factors in the Chicago ordinance are:

• The length of time since the conviction
• The number of convictions that appear on the individual’s conviction record
• The nature and severity of the conviction, and its bearing on the safety and security of others
• The facts or circumstances surrounding the conviction
• The age of the individual at the time of the conviction
• Evidence of rehabilitation efforts

If after such an assessment is completed, the employer tentatively determines the individual to be disqualified, they must notify them in writing of such a preliminary decision. This notice must indicate the conviction or convictions that are the reason for their potential disqualification, and the employer’s reasoning for the potential disqualification. The notice should also include a copy of the conviction history report, provide an explanation of their right to dispute their record or provide mitigating evidence before a final decision is made. Employers must allow the individual at least 5 business days from the first notice to respond before making a final decision.

When making a final decision, employers must consider any information submitted by the individual during this period. If the final decision results in disqualification or other adverse action, the employer must notify the individual again in writing of their final decision, explaining that the decision was made in response to their conviction history with the specific conviction(s) identified, the employer’s reasoning for the final disqualification, and provide any procedures they may have for the individual to challenge the decision or to request that the employer reconsider. This final notice must also reference an individual’s right to file a complaint with the Chicago Commission on Human Relations.

Chicago employers should review the ordinance’s new amendments against their current onboarding, screening, and pre and final adverse action practices in consultation with their legal counsel.

The Information contained herein is for informational purposes only. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. Clients are encouraged to consult with their legal counsel about the impacts of any requirements. This and other important legislative updates can be found on the Sterling website:  https://www.sterlingcheck.com/resources/compliance-updates/