Continuing the trend of changes in employment law, state legislatures passed new laws in Illinois, New York, and Pennsylvania. Here is an overview of what employers need to know.
Illinois
On March 23rd, 2021, Governor J.B. Pritzker signed SB 1480 into law. Under the new law, employers may not use a “conviction record” for employment purposes unless:
- a “substantial relationship between one or more of the previous criminal offenses and the employment sought or held”; or
- an “unreasonable risk to property or the safety or welfare of specific individuals or the general public.”
Per the law, employers must consider several factors when determining if an individual’s criminal conviction has a “substantial relationship between the offense and employment sought/held” or if it poses a “unreasonable risk” to property, other employees, or the general public.
These factors are:
- The length of time since the conviction;
- The number of convictions that appear on the conviction record;
- The nature and severity of the conviction and its relationship to the safety and security of others
- The facts or circumstances surrounding the conviction;
- The age of the applicant or employee at the time of the conviction; and
- Evidence of rehabilitation efforts.
If employers choose to make an adverse hiring decision based on the individual’s conviction record, the new law now requires additional information be included in the pre and final adverse notifications.
candidates.
The pre-adverse action letter must contain:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer's reasoning for the disqualification;
- A copy of the conviction history report, if any; and
- An explanation of the employee's right to respond to the notice of the employer's preliminary decision before that decision becomes final. The explanation shall inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification, or evidence in mitigation, such as rehabilitation.
The employer must wait at least 5 business days for the individual to respond to the pre-adverse action notice before making a final hiring decision.
If the employer chooses to take adverse action solely or in part of the individual’s conviction record, the final adverse action letter must contain:
- “Notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer's reasoning for the disqualification;”
- “Any existing procedure the employer has for the employee to challenge the decision or request consideration; and”
- “the right to file a charge with the department”
New York
In addition to the existing restrictions for employers when considering arrest and conviction records when making employment decisions. New York made several amendments to Fair Chance Act law on January 10, 2021 that will go into effect on July 29th, 2021.
The amendments to the Fair Chance Act employers should be aware of are:
- Employers must consider the relevant fair change factors when evaluating an individual’s or employee’s pending arrests.
- The Fair Chance Act protection is extended to current employees for any convictions during their employment.
- Employers are prohibited from asking about or consider non-criminal offenses.
Pennsylvania
Philadelphia, Pennsylvania expanded their existing law "Unlawful Credit Screening Practices in Employment”, restricting the use of credit history for employment purposes. Under the new amendments that went into effect February 10th, 2021, financial institutions (banks, insurance companies, credit unions etc.) and law enforcements agencies are covered under the law’s requirements.
