Ban the Box and Pregnancy Protections: Employer Action Restrictions

employer action restrictions, Naperville small business law attorney, Gierach Law Firm, reasonable accommodation, Ban the Box, Ban the Box Initiative, heath insuranceThe new Illinois law titled Job Opportunities for Qualified Applicants Act (Act), also known as the Ban the Box Initiative, is a new law that will allow job seekers with past criminal histories to apply for jobs without allowing their past to get in the way of finding gainful employment.

The Act, which will take effect on January 1, 2015, will prevent any Illinois employer with 15 or more employees from considering or inquiring about an applicant’s past criminal history until the employer determines that the individual is qualified for the job, and has been notified that they will have an interview. All inquiries about past criminal records cannot be made until the individual has received a conditional employment offer.

In addition to the Ban the Box Initiative, the Illinois legislature has passed an amendment to the Illinois’ Human Rights Act, which will prohibit discrimination based on a person’s childbirth, pregnancy or any other related medical condition. Both laws will have a significant impact on how small business owners with 15 or more employees interview and hire employees, while also imposing an additional duty on employers to provide reasonable accommodations.

Understanding the Job Opportunities for Qualified Applicants Act

The Act restricts employers with 15 or more employees from considering or inquiring about a job applicant’s past criminal record during the job application process. However, this law does not apply when:

  • A bond is required for employment and the applicant’s criminal conviction disqualifies the applicant from receiving the bond necessary for employment;

  • The employer is excluded from hiring applicants with specific criminal convictions; or

  • An employer is a licensee under the Emergency Medical Services (EMS) Systems Act.

The Illinois Department of Labor is the organization with the duty to investigate any alleged violation of the Act, and has the ability to bring civil suits and impose penalties based on a finding of a violation. The first penalty is a written violation when an employer is accused of violating the Act. A $500 penalty is imposed if the violation is not remedied in 30 days after the receipt of the written warning. A $500 penalty is also imposed when a second violation has come to the attention of the Department of Labor. A fine of up to $1,500 is imposed for a third violation of the Act, and also when the first violation has not been remedied by the employer within 60 days of receipt of a written notice.

The Pregnancy Discrimination and Accommodation Amendment

Recently, the Illinois legislature passed a new amendment to the Illinois Human Rights Act that provides protection against discrimination based on an employee/applicant’s pregnancy, childbirth, or other related medical conditions. If signed into law by Governor Pat Quinn, the amendment will require employers to provide reasonable accommodations, upon request of an employee or applicant, for any medical condition that is caused by childbirth, pregnancy, or other related medical conditions. However, an employer can use the claim of undue hardship as a defense in support of the employer not fulfilling his or her duty to provide reasonable accommodations.

Tips for Complying with the New Laws

The new reasonable accommodation amendment, as well as the Ban the Box law, imposes significant restrictions on the actions of employers. When interviewing new applicants and interacting with existing employees, there are a few measures you can take to ensure that you are in compliance with the new laws. These tips include:

  • Remove all questions relating to criminal histories from all applications for employment;

  • When making employment decisions, refrain from inquiring about an applicant or employee’s past arrests convictions, and refrain from referencing any criminal history information that has been impounded, expunged and/or sealed; and

  • If the reasonable accommodation amendment is passed, make sure to train HR staff and managers about relevant accommodation and non-discrimination duties.

Do you professional assistance from a small business law attorney? Contact a Naperville small business law attorney at the Gierach Law Firm today.