The job interview is a process of candidate screening that is necessary, but one that also is filled with many legal pitfalls. The purpose of the interview is to gain only information that is essential to determining if the candidate meets the skill requirements of the position.
Laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Illinois Human Rights Act (IHRA), the Illinois Equal Pay Act and Title VII of the Civil Rights Act (Title VII) prevent employers from considering certain information during the screening process. To ensure compliance with these laws employers should not ask any questions that might solicit information in regard to:
Questions concerning any of these topics should be avoided at all costs. If an employer determines that certain information is necessary (that is, criminal record, etc.), the employer should contact its attorney to determine the best way to obtain this information. If a candidate begins providing such unsolicited information, the interviewer needs to refocus the interview into job-related areas.
The purpose of this analysis is to organize the recording of information collected during the interview and to assist in evaluating and comparing different applicants when interviews are completed. These forms also help to provide a guideline for interviewers to ensure that interviews are being conducted in a uniform manner. It will be most effective if prepared immediately after the interview.
Employers operate through their employees, which can create risks of negligent hiring claims if an employee engages in misconduct on the job. Employers that thoroughly check every job applicant’s background can limit their negligent hiring liability, and help them evaluate potential risks to allowing an employee access to confidential information or Company property. The best way to conduct these checks is in writing. Employers should request written references from both personal and professional references as well as from previous employers. If a previous employer refuses to provide any requested information, it is best if such refusal is documented in writing and signed by that employer.
Employers should consider providing an authorization on the application form permitting the employer to verify and investigate the information provided on the application by the candidate. Such authorization can help protect former employers and others from defamation claims and thus might make them more willing to provide any requested information.
In addition, employers should have candidates provide proof of any diplomas, transcripts, licenses, etc, if education or licensure is a job requirement. The employer should then verify with the corresponding institutions or agencies that the information provided is accurate and/or current.
It is extremely important that an employer verify all information provided by the applicant prior to offering him or her a position with the company. Inaccurate or incomplete information could subject the employer to unwanted claims at a later date. Employers are encouraged to perform such checks on all current employees as well.
Under the Illinois Credit Privacy Act, most Illinois employers are prohibited from inquiring about an applicant’s, or employee’s, credit history or obtaining a copy of their credit report, unless such an inquiry would be justified by a “bona fide occupational ” This means that if the applicant or employee is going to have access to, or authority over, the employer's cash or equitable assets, then the employer can request a credit report.
Under federal law, the Fair Credit Reporting Act prevents employers from requesting background checks for improper purposes. Prior to requesting a background check on a prospective or current employee, the employer must:
The disclosure and authorization must be its own document, must be larger than 12-point font and in boldface and/or capital letters and/or underlined. In other words, the disclosure and authorization cannot be combined with an application for employment in a way that would encourage the applicant to skim over it. An example of an authorization has been provided below.
PRACTICE TIP: Occasionally, an employer will make a job offer to a prospective employee contingent upon a satisfactory background check. If the employer receives an unsatisfactory report, the employer's natural reaction is to immediately rescind the offer of employment. Do not do this. An employer cannot take any adverse actions without first sending the prospective or current employee a Pre-adverse Action Notice, containing:
Although not explicitly required by the Act, courts have held that the employer has to allow a “reasonable time” for the employee to dispute the findings of the background check with the credit agency's report. While a “reasonable time” is not set by statute, most courts have interpreted it to mean at least five days, not including the day the report is mailed to the prospective or current employee. It is important to communicate to the prospective employee that no final decision has been made based on the report. In addition, an employer must send the employee a post-adverse action notice.
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. As part of the interactive assessment, employers must consider the following factors regarding the conviction and surrounding circumstances:
Before taking any an adverse job action based on a conviction record, employers must comply with the following notice requirements:
The new IHRA Amendment acknowledges that some laws prohibit employers from hiring persons with specific conviction records. In those instances, the employer still must notify the employee or applicant of their employment disqualification pursuant to law. The employee then has at least five business days to respond where the employee can dispute the accuracy of the relevant conviction record disqualifying their employment.
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. This authorization must comply with the provisions of the Fair Credit Reporting Act (FCRA), discussed below, which governs employers that obtain background reports from third parties.
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 healthcare workers, such as nurses providing direct care to patients, must submit to a criminal background check.
With the exception of a few ultra-hazardous occupations (i.e., Department of Defense contractors), federal law does not require employers to administer employee drug tests. If an employer decides to adopt a drug testing policy, the drug tests must be administered in a manner that complies with the Americans with Disabilities Act (ADA). The ADA prohibits employers from discriminating against employees on the basis of their actual or perceived disability. Although the ADA does not prohibit employers from taking an adverse employment action – such as failing to hire an applicant – against an applicant or employee who tests positive for an illegal drug, employers, in most circumstances, cannot take an adverse action against an employee for taking a legal drug. Here is the problem: there are very few drugs which are illegal in all circumstances, but there are many drugs that are legal if they are prescribed by a physician for a proper purpose. For example, many drug tests disclose the use of amphetamines, which is an illegal drug if taken without a prescription, but is a legal drug if taken to treat increasingly pervasive disorders such as Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD). If an applicant with ADHD tests positive for amphetamine, the employer would possibly violate the ADA if the employer decides not to hire the applicant based on the positive drug test. If the employer knows that the applicant has a disability, the employer is required to offer reasonable accommodations if the applicant is otherwise qualified for the position. This is a very tricky and fact-specific area of the law and it would be in an employer's best interest to seek legal advice if an applicant or employee tests positive for a drug that could be prescribed to treat a disability. Employers will need to take additional steps to ensure that such a positive drug test resulted from the illegal use of the drug.
Unlike some states, Illinois does not have a general law that encourages or prohibits employers from requiring employees to undergo a drug test. There are certain occupations which are subject to special drug testing laws, such as employees of the Chicago Transit Authority and school bus drivers. Otherwise, state laws are similar to federal laws insofar as you cannot discriminate against an employee or applicant with a disability under the Illinois Human Rights Act.
Effective January 1, 2020, Illinois becomes the 11th state to permit recreational marijuana use. The Cannabis Regulation and Tax Act allows adults In Illinois to possess and consume marijuana. While employers are allowed to prohibit its employees from using marijuana in order to comply with state or federal funding requirements or contract obligations, employers may not base employment decisions on whether an applicant or current employee lawfully uses marijuana off premises and during nonworking or non-call hours. However, employers remain free to implement reasonable zero-tolerance drug policies.