Illinois Background Check Laws

Illinois's Job Opportunities for Qualified Applicants Act (820 ILCS 75/1 et seq.) prohibits most employers from inquiring about an applicant's criminal record or criminal history until the applicant has been determined to be qualified for the position and has been notified that they have been selected for an interview, or, if there is no interview, until a conditional offer of employment has been made. This applies to both public and private employers with 15 or more employees. There are exceptions for positions where a federal or state law requires a background check or where a bond is required.

Illinois law generally complements the federal FCRA, often adding more stringent requirements, particularly concerning the timing of criminal history inquiries (ban-the-box) and the use of criminal records in employment decisions. While the FCRA dictates disclosure and authorization requirements for consumer reports, Illinois law further restricts when certain information can be considered. Employers must comply with both the FCRA and Illinois state laws, adhering to the stricter of the two when there is overlap.

The Illinois Equal Pay Act (820 ILCS 112/1 et seq.) prohibits employers from inquiring about a job applicant's wage or salary history, or relying on such history to determine whether to offer employment or to set compensation. Employers may, however, discuss an applicant's expectations for salary, benefits, and other compensation. This law went into effect on September 29, 2019.

Under the Illinois Human Rights Act (775 ILCS 5/2-103), employers generally cannot inquire about or use records of arrest that did not result in a conviction, or records of juvenile adjudications. Additionally, the Job Opportunities for Qualified Applicants Act (820 ILCS 75/1 et seq.) restricts when conviction records can be inquired about. While not a strict time limit on reporting, Illinois law emphasizes that employers should only consider convictions that are substantially related to the job duties and business necessity, and only after a conditional offer of employment.

Illinois law prohibits employers from inquiring about, or using in employment decisions, records that have been expunged or sealed. Under the Illinois Human Rights Act (775 ILCS 5/2-103), it is a civil rights violation to inquire about or use information regarding a criminal record that has been expunged or sealed. Employers should ensure their background check providers are aware of and comply with these restrictions, and that their own hiring practices do not inadvertently access or utilize such information.

Beyond the ban-the-box provisions, Illinois's Human Rights Act (775 ILCS 5/2-103) makes it a civil rights violation to refuse to hire or to discharge an individual, or to otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of a conviction record, unless the conviction record is substantially related to the position or the employer can demonstrate a business necessity. This requires an individualized assessment, considering factors such as the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job held or sought.