The Chicago Employment Law Blog

Can Employers Use Criminal History in Hiring Decisions?

A background check can make the difference between a candidate snagging the job or getting the boot. But it's important for employers to tread carefully when looking into a candidate's criminal history.

As it turns out, prospective employers can't always use whatever they find in the hiring process.

Illinois, like many other states, limits an employer's ability to look into a job applicant's criminal history.

Last April, the EEOC updated its policy regarding businesses' use of criminal background checks in hiring. The purpose of the EEOC's criminal-background-check guidance is to discourage businesses from refusing to hire ex-offenders.

Generally, employers can't use someone's arrest record in an employment decision. But in some situations, employers can consider the fact that someone was convicted of a crime.

These limitations might not apply to people working in health care, for the government, or with sensitive populations. Generally, the background check needs to be reasonable, and the reason for denying employment based on a criminal background check needs to correlate between the criminal act and the responsibilities of the job.

Employers should also be careful about "informal" background checks. Under Illinois' background check laws, just because a candidate's personal information may be publicly available doesn't mean that employers can consider all of it. For example, when you "research" a candidate on Facebook, you may find some information you're not supposed to consider. This could expose you to legal liability.

Employers must be very careful whenever using arrest or conviction information in the employment decision as this can lead to discrimination lawsuits and other problems. To play it safe, employers should follow the EEOC's guidelines and reduce their use of criminal background checks during the hiring process.

Employers should check for any questions on an applicant's criminal history that could land them in hot water. This is especially needed if you're using standard forms that don't reflect the EEOC's current guidelines.

If you're a job applicant or an employer who isn't sure whether a criminal background check is legal or not, you may want to talk to an experienced Chicago employment law attorney.

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