Amendments to Chicago’s “Ban the Box” Law Aimed at Fair Chance

In May 2023, Chicago introduced significant amendments to its “Ban the Box” law, imposing stricter regulations on how employers use criminal history in employment decisions. These changes are critical for employers to understand in order to ensure compliance and avoid legal complications. The amendments enhance the city’s already existing Fair Hiring Ordinance, which seeks to limit discrimination based on an individual’s criminal history, particularly in hiring processes.

Key Changes to Chicago’s Ban the Box Law:

1. Expanded Scope of Coverage

The updated ordinance applies not only to employers but also to employment agencies, labor organizations, and other entities involved in hiring. It covers both private sector and certain public sector employers with at least one employee working within Chicago. Employers in the city must adhere to these regulations regardless of their overall size, making the law more encompassing than previous iterations.

2. The Individualized Assessment Process

One of the most notable changes is the introduction of a mandatory individualized assessment process. Before making an employment decision based on an individual’s criminal history, employers must evaluate the specific circumstances of the conviction rather than applying blanket exclusions.

During the individualized assessment, employers are required to weigh six key factors:

• The nature and severity of the offense: Was the conviction for a violent or nonviolent crime? What was the gravity of the offense?
• The time elapsed since the conviction: How long ago did the crime occur? Was it recent, or has there been a significant period of rehabilitation since?
• The nature of the job sought: Does the conviction have a direct connection to the role in question? For example, an individual with a conviction related to financial fraud may pose a higher risk in financial positions.
• Evidence of rehabilitation or good conduct: Has the candidate demonstrated that they have taken steps to reform, such as completing probation, community service, or attending counseling programs?
• The age of the individual at the time of the offense: Was the individual a minor or a young adult? How does this factor into their current maturity level?
• Other relevant mitigating circumstances: Any other context that may help provide a fuller picture of the candidate’s character, such as socioeconomic factors or stressors that may have contributed to the offense.

This comprehensive review is designed to give individuals with criminal records a fair opportunity in the job market while balancing employers’ concerns about safety and suitability for the role.

3. Notice Requirements

The amendments also introduce more stringent notice requirements. Before an employer takes any adverse action, such as denying a job offer or terminating employment based on a criminal record, they must follow a specific two-step process:

• Pre-Adverse Action Notice: The employer must provide the individual with written notice that includes a copy of the criminal background report, details about the conviction, and an explanation of why the employer is considering the conviction in its employment decision.
• Opportunity to Respond: After receiving the pre-adverse action notice, the candidate must be given at least five business days to respond, allowing them to provide additional information, context, or evidence of rehabilitation.
• Final Adverse Action Notice: If the employer decides to move forward with the adverse action, they must issue a final notice, which reiterates the decision and provides details on any further appeal processes.

4. Adverse Employment Decision Considerations

When an employer decides whether to take adverse action based on criminal history, they must consider three main criteria:

• Substantial Relationship: Does the criminal offense directly relate to the nature of the job being sought? For example, a candidate with a history of theft may not be suitable for a position handling large sums of cash.
• Unreasonable Risk: Does the individual’s criminal history pose an unreasonable risk to property, individuals, or the public? Employers should assess whether the conviction raises concerns about workplace safety or security.
• Compliance with Law: In some cases, employers are required by federal, state, or local law to consider an individual’s criminal record, especially in highly regulated industries such as healthcare or transportation. Employers must ensure that any action taken aligns with these legal requirements.

Final Thoughts for Employers

The 2023 amendments to Chicago’s Ban the Box law place a stronger emphasis on fairness and transparency in the hiring process. Employers must now conduct detailed individualized assessments, adhere to strict notification requirements, and consider a candidate’s criminal record thoughtfully. Failure to comply can result in significant penalties, making it crucial for businesses to update their hiring policies and train their HR teams on these changes.

For employers in Chicago, understanding and implementing these requirements will not only ensure compliance but also promote fairer, more equitable hiring practices.

 

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Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.