May 24, 2023

The City of Chicago recently amended its “ban-the-box” ordinance. This amendment will affect how employers within the city may conduct criminal record screening. According to the updated regulation, employers must perform individualized assessments for each applicant. They must also provide pre- and final adverse action notices based on certain requirements.

Under Chicago’s amendments to Municipal Code Titles 2, 4, and 6, employers must adhere to several new ban-the-box requirements. First, the amendments prohibit the use of arrest records “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.”

Furthermore, these regulations prohibit an employer from taking adverse action based on an individual’s criminal record. However, the amendment has provided exceptions. For example, employers may do so after determining an acceptable reason based on the results of an individualized assessment. Details of the example include:

1. “A substantial relationship between one or more of the criminal offenses in the person’s conviction record and the employment sought or held; or
2. The granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”

The law also defined what determined a substantial relationship. According to it, employers must consider whether the position presents an opportunity for the individual to commit a similar offense. They must also determine whether the circumstances that led to the conviction in question apply to the desired position.

In performing the individualized assessment, the law requires employers to consider factors such as the following::

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.

Should the employer take adverse action based on these results, they must provide a pre-adverse action notice. This notice must contain the following:

1. The particular conviction or other elements of the conviction record that is the reason for the decision as well as the reasoning behind it;
2. A copy of the conviction record;
3. And an explanation of the individual’s right to respond before the company makes a final decision. This explanation must inform the individual that they may submit evidence challenging the accuracy of the record or mitigating evidence, such as proof of rehabilitation.

Should the employer proceed with an adverse action after receiving and considering the applicant’s response, they must provide a final adverse action notice. This notice must contain the following:

1. Notice of the disqualifying conviction or element of the conviction record that is the basis for the decision and the reasoning behind the decision.
2. Any procedures the employer has for the applicant or employee to challenge the decision or request reconsideration; 
3. And the employee’s right to file a complaint with the Commission.

Chicago’s existing ban-the-box legislation has seen significant changes that have already taken effect. As such, employers should review and revise their existing screening policies to ensure compliance with these regulations. One of the best ways to get started is to partner with an experienced screening provider that can help.

Looking to easily verify your employment qualifications? Talk to a sales representative today about switching to pre-employment background checks.

Source