Criminal Background Checks for Public Sector Employers – Part I

What Public Employers Should Know About the “Ban-the-Box” Movement

Debates surrounding criminal background checks have reemerged as the state has recently passed legislation prohibiting private employers from inquiring as to one’s criminal history during the preliminary stages in the hiring process. While the recent legislation is limited to the private sector, this “ban-the-box” movement has gained momentum throughout the country, with a primary objective of ensuring that candidates are being reviewed for their aptitude prior to addressing any background concerns. Although not required, in 2013 the state also adopted this practice. Consequently, it is important for public sector employers to be aware of the general climate and recent trends pertaining to criminal background checks so as to promote fair hiring practices.

By way of summary, the phrase “ban-the-box” refers to the question on employment applications asking applicants “have you ever been convicted of a crime” and providing candidates with the option of checking a “yes” or “no” box. While Illinois law currently prohibits employers from considering an individual’s arrest record, in practice this question often leads to applicants being discriminated against. The risk is that if an applicant checks “yes,” it will be used as a preliminary screening measure and will disqualify an applicant prior to conducting any further inquiry.

The problems posed by such a question is two-fold. First, in many instances, those in charge of the background check procedure may not be well-versed in the nuances of criminal law. While an employer may consider conviction information, dispositions such as “nolle pros,” “stricken off – leave to reinstate,” and “guilty with court supervision” are often mistakenly treated as convictions and used as disqualifiers.

Secondly, such a practice, without relying on independent fingerprinting information, places employers in a position in which they are basing an employment decision solely based on the information provided by the applicant. Again, because this area of law is especially nuanced, this self-reporting is often inaccurate. Individuals will mistakenly believe that “probation” kept an offense off of their record, while others will assume that they are required to disclose any arrest (or will do so to err on the side of caution). This may lead to inadvertent inaccurate reporting and/or falsification of an employment application.

To alleviate these concerns, the state legislature has required that private sector employers engage in the background check process only after an offer of employment has been extended. Accordingly, public sector employers should be cognizant of these legal trends and create a screening process that is narrowly tailored and set up in a way so as to minimize these potential pitfalls.

In the upcoming weeks, we will explore some of these background check issues in greater detail, so please be sure to check back!

By: Laura M. Julien

For more information regarding criminal background check requirements for public employers, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com