Employment Overview: Pitfalls of Background Checks

Criminal background checks have become an integral part of today’s hiring process. Most job offers are conditioned on “passing” a criminal background check. Illinois law imposes restrictions on what an employer can ask a job applicant about his or her criminal history or rely on when making a decision to hire, these limits are routinely ignored. This is because the majority of background checks are performed by consumer reporting agencies contracted by employers. These agencies are not regulated by state law and therefore provide employers with information they are not supposed to see.

As of January 1, 2015, most employers in Illinois are barred from including a criminal history question on their application for employment.  Only after the employer has concluded that a job applicant is qualified for the job and is contacted for an interview can a job applicant be asked about whether he or she has a criminal background.

Under the Illinois Human Rights Act (IHRA), employers are prohibited from asking job applicants if they have ever been arrested for crimes for which there were no resulting convictions. The law, however, allows employers to consider any arrest where an individual pled guilty to a crime, even if he/she received supervision, community service or special probation.  In each of these cases, the individual has not legally been convicted of a crime, provided he/she completes the terms of the sentence successfully.

The problem that often arises in such cases is that a job applicant answers “no” to having ever been convicted of a crime and later undergoes a criminal background check after receiving a conditional job offer. The employer, having seen evidence of the arrest and the admission or finding of guilt, mistakenly assumes that the applicant was convicted of a crime and lied on the job application. Not surprisingly, the employer then withdraws the offer of employment.

Fortunately, the IHRA also stipulates that a job applicant cannot be asked to disclose any criminal history that has been expunged or sealed. Thus, the easiest way not to be penalized for having a criminal record (no matter how long ago the crime was committed) is to remove it from the prying eyes of a consumer reporting agency that collects and reports these data for profit.

If you have been arrested for or convicted of a crime under Illinois law, it is to your benefit to pursue a remedy of expungement, sealing or clemency.  Even if you are not currently eligible to expunge or seal your record, the Illinois legislature continues to revisit these provisions in order to give those who have committed more serious offenses a chance to clear their records in order to find gainful employment.

For more information, download Criminal Records Relief in Illinois.