Is the Illinois’ Employee Background Fairness Act a game-changer for nonprofits’ child safety screening? This new law, passed earlier in 2021, makes it a civil rights violation for employers to reject applicants or otherwise take adverse action against employees based on their criminal convictions. But thankfully, and sensibly, nonprofits that provide children’s programs, such as schools, sports activities, and childcare services, are fully able to consider individuals’ criminal records in assessing their suitability for working with children. Organizational leaders should now do so more thoughtfully with respect to their employees, and with continued complete discretion for their volunteer workers.
The Act’s Expansion of Illinois’ “Ban the Box” Law
Illinois’ Employee Background Fairness Act, signed by Governor Pritzker in March 2021 as SB 1480, expands a 2015 Illinois state law (called the Job Opportunities for Qualified Applicants Act) prohibiting employers from considering criminal convictions prior to an applicant’s interview or conditional offer of employment. Such laws are known as “ban-the-box” prohibitions, referring to boxes to be checked on job applications – e.g., “Have you ever been convicted of a crime?” Ban-the-box laws typically limit employers from asking prospective employees about criminal convictions, at least until an interview or a conditional offer of employment is made.
The new Act goes even further. Employers are now precluded from using a criminal conviction as the basis of virtually any employment decision, including the refusal to hire an applicant, or to maintain or promote a current employee. Important exceptions exist, however, that are vitally important for child safety and related risk management precautions.
The Importance of Child Safety Screening
Nonprofits regularly carry out criminal background checks for potential employees and volunteers, as an integral component of their children’s programs. All good so far – entirely legal, and definitely an important best practice! The high-profile exposure of widespread abuse within prominent American organizations has highlighted the sad reality that none are immune from predators who may seek to harm children. Responsible nonprofits therefore screen all employees and volunteers for potential prior criminal convictions, as a prudent risk management measure to protect children, as well as for other “red flag” indicators that such persons should not work with children.
Such screening measures typically involve a criminal background check, consistent with an organization’s legal responsibility to determine that prospective workers will not put children at risk. Indeed, failure to properly screen workers – and to take appropriate follow-up action – could subject an organization to liability. This concern holds especially true in cases where a child is harmed by an organizational worker, whose criminal background should have alerted the organization to his or her unsuitability for working with children.
Applying Illinois’ New Act to Child Safety Screening
So how does the Act work within the context of child safety screening and abuse prevention? Three distinctive applications should guide all organizational leaders.
First, the Act does not apply to volunteers, only to prospective or current employees. This is a huge legal exception, and vitally important for nonprofits that rely heavily on volunteers for childcare activities. In other words, nonprofits may fully, freely, and extensively screen volunteers through criminal background checks. And they should! Such background checks should be carried out before the prospective volunteer is allowed to work around children. Additionally, it is a best practice to carry out follow-up background checks periodically, such as every three to five years (for both volunteers and employees).
Second, the Act provides for categorical disqualification in two limited contexts. More specifically, persons shall be disqualified based on their prior criminal history if exclusion from employment is “otherwise permitted by law,” as, for example, in positions requiring professional licensure. Additionally, registered sex offenders are not allowed to work with children. Indeed, for example, private schools must refuse employment to sex offenders as a legal obligation. Persons who have committed certain types of crimes thus may be “per se disqualified,” that is, automatically barred from working with children.
Third, and more broadly for organizations with paid workers, they now must satisfy the Act’s standard for refusing employment (or otherwise taking adverse employment action). A criminal conviction will be disqualifying only if one or the other conditions is satisfied: (a) the conviction shows that hiring an employee “would involve an unreasonable risk” to property or to the safety of individuals or the public; or (b) there is a “substantial relationship” between the nature of the employment and the applicant’s criminal offenses.
The question of “unreasonable risk” must be evaluated according to the following five factors: the applicant’s criminal past: the time since conviction; whether the applicant is a repeat offender; the nature and severity of the offense; the facts or circumstances surrounding the conviction, including the applicant’s age when convicted; and any evidence of rehabilitation. The “substantial relationship” question must be answered in terms of whether the prospective employment position “offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”
In addition to the “interactive assessment” of these factors, employers are subject to specific notice requirements that allow an applicant an opportunity to respond to an employer’s concerns. Only then can employers make a final decision, and any adverse decision must be accompanied by a written statement that lists the disqualifying convictions and advises the applicant or employee of his or her right to file a complaint under the Act.
The New Law in Action
As a practical matter, responsible nonprofits may fully comply with the Act – without necessarily being aware of its strictures, but rather as an effective risk management measure that fits with best practices. Moreover, the Act’s public policy aims regarding criminal convictions should not be viewed as contrary to effective child safety. Here’s why.
First, as stated above, the Act does not apply at all to volunteer workers. Nonprofits therefore face no potential liability under the Act with respect to carrying out criminal background checks for prospective volunteers. Second, nonprofits most definitely should never allow convicted sex offenders to work with or around children; legally recognized high recidivism rates clearly demonstrate unacceptable risks, as contemplated by the Act. Third, responsible nonprofits should thoughtfully consider other problematic information that may arise from criminal background checks, as articulated though the Act’s “interactive assessment” rubric.
This third application may be the most challenging. For example, should a prospective childcare worker be rejected for a past drunk driving conviction? Maybe, maybe not. Or what about a coach who admits to assaulting his spouse, after a periodic criminal background check reveals such conviction? Should he now be fired from his children’s sports position? What else should responsible decision-makers know?
This type of resulting information from criminal background checks likely warrants additional due diligence measures regarding the applicant’s fitness for new or continued employment. Additional questions to be answered may include the underlying circumstances, how long ago the offense occurred, number of incidents, countervailing evidence, rehabilative efforts, input from a professional counselor or therapist, input from the organization’s insurer, additional reference checks, nature of the person’s responsibilities, and related legal guidance regarding all of this information. Significantly, the Act requires further measures – namely, to provide notice to the potential employee or volunteer and an opportunity to respond.
Fair enough – the Act’s laudable public policy effort helps people overcome their criminal background and seek gainful employment. Correspondingly, employers should conscientiously comply with their new legal obligations, now on pain of potential civil liability. Nonetheless, the Act should not discourage or otherwise thwart organizations’ child safety protocols. Rather, nonprofits serving children through paid staff should recognize their dual responsibilities: to provide both effective background screening for protecting children and effective employee screening per the Act’s heightened due diligence requirements.
 775 ILCS 5/2-103.1(A).
 775 ILCS 5/2-103.1(B)
 775 ILCS 5/2-103.1(C)
 See People v. Pepitone, No. 122034, 2018 IL LEXIS 431, at 22-23 (Ill. April 5, 2018) (listing cases recognizing high-recidivism rates among sex offenders).