Screening candidates for employment by conducting background and reference checks is a valuable way for employers to discover relevant information about potential employees. The information discovered may indicate whether an applicant will be a good fit for a position. On the other hand, the information discovered may suggest that an applicant is not qualified.
There are many different steps employers may take to check an applicant’s background. Depending on the nature of the position in question, employers may choose to use a few or all of the steps that follow for conducting appropriate background investigations.
An employer should contact all of an applicant’s previous employers to check the applicant’s:
Employers can ask a former employer of an applicant whether they would rehire the applicant. Employers can also ask a former employer of an applicant if there is anything else in the applicant’s background that would otherwise affect the applicant’s suitability for employment, including whether the applicant is honest, reliable, or has ever engaged in any improper conduct. Because of potential privacy concerns and liability for defamation, many former employers are reluctant to provide detailed information about former employees.
An employer should not ask any question that it would not ask the applicant; the focus of any inquiries should remain on the applicant’s ability to perform the job functions required by the position. The following are examples of illegal inquiries:
In most cases, employers should check the personal and prior employment references listed by an applicant and then document the information received, or, if not successful, the efforts made to do so. While the law does not require a written authorization from the applicant before references are called, employers normally should obtain such a broad authorization before conducting these reference checks. Additionally, employers might consider requesting a waiver from an applicant that releases former employers and the requesting employer from any claims relating to the reference check. With this type of waiver in place, a former employer may be willing to give more relevant information about their former employees. An employer also should make sure they have a fully completed application to use as a resource in the reference check, including:
When contacting references, prospective employers should request basic information such as:
In addition to asking relevant questions and listening closely to the answers, a prospective employer should take careful notes of information given by a reference, as well as all unsuccessful attempts made to contact references. The notes should contain only legal information, even if the reference has provided additional information that the employer cannot legally use in considering the employment application.
When an employer is asked to provide information regarding a former employee, the employer should consider adopting a policy of providing only limited factual information to avoid being sued by a former employee alleging claims of defamation, slander, invasion of privacy, and/or retaliation. Under such a policy, employers should decline to volunteer any subjective, speculative, and/or undocumented information and provide only the dates of employment and the positions held by the employee.
With the advent of Google and search databases and various other social networking sites (for example, Facebook, Twitter, etc.), many employers conduct background checks of job applicants and employees using informal information sources. Use of the public information posted on these sites is not illegal, so long as the employer does not use the information to improperly weed out potential candidates.
Example: Many social networking sites will reveal a substantial amount of personal information about an applicant, such as the applicant’s:
Because this information is normally not found on a standard employment application, employers should keep careful records demonstrating that employment decisions were based on unbiased, legal considerations and not on Internet information that would otherwise be considered an illegal basis for an employment decision.
Governor Pritzker signed Public Act 101-656 into law, amending the Illinois Human Rights Act (IHRA), the Business Corporation Act of 1983, and the Illinois Equal Pay Act of 2003. The Public Act became effective when signed on March 23, 2021. The amendments represent lawmakers’ attempt to eliminate racial inequalities caused by conviction records and address pay inequalities across gender and race. The amendments to the IHRA impact all employers who use criminal records in making employment decisions.
The IHRA now prohibits the use of conviction records to disqualify a candidate for employment or promotion, or to make other employment-related decisions, except in limited circumstances. Moreover, the IHRA now mandates employers to comply with new procedural obligations when a conviction record is considered and will be used to disqualify an applicant or employee from employment or subject a person to other adverse job actions. Specifically:
• Employers must engage in an interactive assessment before taking an adverse job action, and may take an adverse action only if they conclude that the “substantial relationship” test or, alternatively, the “unreasonable risk” test between the conviction and the job position, disqualifies the individual. The “substantial relationship test” compares whether the job at issue offers the opportunity for the same or a similar criminal offense to occur, and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position. In the alternative, an individual with a conviction record may be disqualified for employment if employment of the individual would create an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
In addition, employers in Illinois may not make employment decisions based on arrest records. Employers in Illinois are also prohibited from making employment decisions based upon expunged or sealed convictions. Consequently, employers should be sure not to use arrest records or expunged or sealed convictions as a basis for not hiring an applicant and must notify applicants that they should not provide information about sealed or expunged records on a job application. After January 1, 2020, employers should be careful to confirm whether background check reports that include cannabis-related convictions have inadvertently disclosed information that should have been expunged when cannabis became legal.
Criminal background checks may be obtained from either the Illinois State Police or from private firms. Employers should obtain a signed authorization from the potential candidate after they have been deemed qualified for the position and either selected for an interview or given a condition offer of employment, agreeing to submit to a criminal background check as a condition of employment.
Some professions in Illinois are required to request criminal background checks.
Example - nursing homes and child day care centers must request a criminal background check either as part of the hiring or licensing process. Other health care workers, such as nurses providing direct care to patients, must submit to a criminal background check.
Employers may review the driving record of applicants for positions that would require the use of a company vehicle. Employers may also check driver’s license records for any applicant, to determine whether there may be any barriers to the individual getting to work on time. Driving record checks should be conducted before an applicant is hired and then periodically throughout employment. When checking the driving record of an applicant, employers should confirm that an applicant has a valid driver’s license and review any driving violations, particularly past violations involving reckless driving and driving under the influence of alcohol. Keep in mind, however, that under the ADA, alcohol-related convictions cannot be used to discriminate against an applicant perceived to be an alcoholic or with a record of alcoholism. Moreover, if the employer uses a third-party company to obtain this information, the Fair Credit Reporting Act (FCRA) may also be implicated.
Credit checks may be performed on a limited basis, including for positions that involve certain financial responsibilities. The EEOC takes the position that credit checks may have an adverse impact on minorities. In addition, pursuant to Illinois state law, the use of credit history as a basis for making employment decisions is limited. Specifically, the law provides that private employers may use credit history information when making employment decisions when any of the following circumstances exist:
Outside of these carve-outs, Illinois employers may not base employment decisions on credit worthiness, credit standing, credit capacity or credit history. Therefore, it is a good practice to limit the use of credit checks.
Example: Conducting a credit check for a restaurant cook position with no financial responsibilities is inappropriate and likely unlawful, whereas conducting a credit check for a controller or accounts payable position is likely lawful.
If the employer runs a credit check for one candidate applying for a certain position, the employer should run a credit check for all applicants for that position. Typically, credit reports can be obtained through third-party entities that prepare such reports for a fee. As a result, the provisions of the Fair Credit Reporting Act (FCRA) discussed below govern employers that obtain credit reports from third parties.
Employers must get the authorization of the applicant before requesting any credit report. Employers should provide applicants with an authorization form for signature that is printed on a stand-alone page, and not a request for authorization that is merely included as an item on a general application. Before taking any adverse action based in whole or in part on a credit or background report, the employer must provide a copy of the report to the employee along with a summary of consumers’ rights provided by the credit-reporting agency.
The FCRA includes significant compliance requirements for employers who seek and/or use credit checks or consumer reports in making employment-related hiring, promotion, and termination decisions. The term consumer report includes a credit check and is defined very broadly by the FCRA as any written, oral, or other communication from a consumer reporting agency bearing upon the consumer’s:
It includes records that are used in whole or in part to assess an individual’s qualifications for employment, such as:
These consumer reports must be generated by a consumer-reporting agency for the FCRA to apply. A consumer-reporting agency is also defined quite broadly. It is essentially any third-party business hired by the employer to obtain the information described above and could include private investigators, law firms, or any other business engaged to perform background checks. Generally, the FCRA does not apply to an employer’s actions to conduct its own reference checks by contacting former employers or otherwise checking public records or documents.
The following guidelines summarize some of the principal requirements imposed by the FCRA when an employer uses a consumer report in making employment decisions. Failure to follow the requirements of the FCRA could result in liability for civil fines, liabilities for damages, and even criminal prosecution.
Before obtaining a consumer report for the purpose of screening potential employees, or making any promotion, demotion, or discharge decisions regarding existing employees based upon the contents of the consumer report, an employer must first:
If an employer intends to rely in whole or in part on information from a consumer report to take adverse action against an applicant or employee (that is, declining to hire, promote, or retain an employee), the employer must follow a two-step procedure:
The pre-adverse action notice is intended to provide the affected applicant or employee the chance to address and/or correct erroneous or incorrect information stated in the consumer report. If the employer is planning on taking adverse employment action based on information in the consumer report, the employer must take all of the following actions:
For the third requirement, it is recommended that the employer enclose the FTC pamphlet describing rights under the FCRA that may be found at:
It is recommended that the employer allow the affected individual about a week to contact the consumer-reporting agency identified in the Pre-Adverse Action Notice before taking the adverse employment action. If the employer takes adverse employment action based on information in the consumer report, the employer must inform the affected individual in writing of:
Employers are required to keep copies of consumer reports they have received and notices sent for two years.
For additional information, employers can review the FTC guidance at:
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An HR audit Snapshot — Illinois
An introduction - features of the HR Library
Background checks — Illinois
Benefits — Illinois
Celebrations in the workplace — Illinois
Child labor — Illinois
Compliance thresholds — Illinois
Disabilities and reasonable accommodations — Illinois
Disaster planning — Illinois
Discipline — Illinois
Discrimination — Illinois
Diversity in the workplace — Illinois
Drugs and alcohol — Illinois
Family and medical leave — Illinois
Federal contractors and affirmative action — Illinois
Health insurance continuation coverage — Illinois
Health insurance — Illinois
Health insurance portability and privacy — Illinois
Immigration — Illinois
Independent contractors — Illinois
Military leave — Illinois
Other types of leave — Illinois
Pandemic outbreaks — Illinois
Performance evaluations — Illinois
Personnel files — Illinois
Plant closings, mass layoffs and reductions in force — Illinois
Policies and procedures manuals — Illinois
Politics in the workplace — Illinois
Privacy rights — Illinois
Protecting electronic information — Illinois
Public employers — Illinois
Recruiting and hiring — Illinois
Restrictive covenants and trade secrets — Illinois
Safety and health — Illinois
Social media — Illinois
Telecommuting — Illinois
Temporary and leased employees — Illinois
Termination — Illinois
Unemployment compensation — Illinois
Unions — Illinois
Wages and hours — Illinois
Whistleblower protections — Illinois
Workers’ compensation — Illinois
Workplace harassment — Illinois
Workplace investigations — Illinois
Workplace violence — Illinois