Can Illinois employers really consider THAT? You might be surprised what parts of your criminal background are considered “fair game” for a potential employer to utilize in deciding whether or not to hire you.
Generally speaking, an Illinois employer or prospective employer may use information from a person’s criminal history record to make a decision about whether or not to hire (or retain, if the individual has already been provisionally hired) that person. Of course, there are several key exceptions to this generality, the most notable being that an employer cannot use arrest or other criminal history record information that has previously been ordered expunged, sealed or impounded under Section 5.2 of the Illinois Criminal Identification Act (20 ILCS 2630/5.2) as a basis to refuse to hire or discharge an individual.
Moreover, no employer in Illinois, public or private, is allowed to use “discriminating factors” to base a decision of employment on. The Illinois Human Rights Act, 775 ILCS 5 et seq., sets forth in Section 102(A) a list of factors that constitute “unlawful discrimination”; these factors include race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, and sexual orientation. (See 775 ILCS 5/102(A).)
Additionally, an employer cannot deny a person who has been arrested, but the charge was subsequently dismissed, a job based upon the dismissed charge. However, as is so often the case with the law, there’s a bit of a catch: the statute does not prohibit an employer/potential employer from using means besides a person’s arrest report itself from determining whether that person actually engaged in the conduct he/she was arrested for, and then denying the person a job based upon that independent information. (See 775 ILCS 5/103(A) and 775 ILCS 5/103(B).)
Certain fields are allowed to scrutinize job candidates even more closely. Not surprisingly, it is even more difficult for an individual with a criminal record to obtain work providing direct care in a health-related occupation, as these types of employers are granted even more latitude in using a person’s criminal history record as a basis for which to deny employment. The Health Care Worker Background Check Act (see 225 ILCS 46 et seq.) prohibits the hiring of any person who will be providing “direct patient care” and has been convicted of committing or attempting to commit one of several enumerated criminal offenses, unless the potential employee obtains a waiver from the appropriate licensing agency.
Confused? You’re not alone. And at the risk of further overwhelming you, it is worth noting that the above summary is only just that: a general overview of what certain types of employers can and cannot utilize in order to make a hiring decision about a certain individual. The laws in this area are complicated and confusing, and there are many contradictory analyses of the pertinent statutes. Your best bet in this already difficult job market is to not give a potential employer any reason whatsoever to even hesitate about whether or not to hire you, and for so many, this may mean expunging or sealing your criminal record, as permitted by law, prior to submitting a job application. Do not hesitate to contact an attorney skilled in criminal records law to assist you in this way – your entire future may be at stake!