Four New Ban-the Box Laws Became Effective This Year

By Philip L. Gordon and Zoe M. Argento

With the start of 2015, new ban the box laws became effective in Illinois, the City of Chicago, and Montgomery and Prince George’s counties in Maryland.

Ban the box laws prohibit questions about an applicant’s criminal background on employment applications and often include additional restrictions on inquiries by employers into criminal history.

The Illinois state law

Illinois’s Job Opportunities for Qualified Applicants Act, which became effective on Jan. 1, prohibits covered employers from inquiring into the criminal history of an applicant until after the applicant has been determined to be qualified for the position and notified of selection for an interview.

Under the Act, covered employers are employment agencies and any private entity with 15 or more employees. For those covered employers that do not conduct interviews, the inquiry into an applicant’s criminal history cannot take place until after a conditional offer of employment has been made to the applicant.

Nevertheless, the Act provides that an employer may still notify applicants in writing of any specific offenses that would disqualify an applicant from employment. The Illinois law is discussed in more detail here.

Difference in Chicago’s ordinance

The Chicago ban the box ordinance, also effective on Jan. 1, mirrors the Illinois statute but differs from that law in three respects that are important for private employers:

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  1. Chicago’s ordinance effectively expands the Illinois law by applying that law’s restrictions to all private employers that have a business facility within the city or that are subject to Chicago’s licensing requirements even if the employer has fewer than 15 employees. As noted above, the Illinois law applies only to employers with 15 or more employees.
  2. Covered employers must inform applicants of the basis for a rejection if the rejection is based in whole or in part on the applicant’s criminal history. The Illinois law does not have a similar requirement.
  3. The Chicago ordinance provides different penalties. The ordinance authorizes fines of $100 to $1,000 for violations. In addition, violators are subject to license-related discipline, including fines and suspension or revocation of the license to operate in the city.

Washington, D.C.-area laws

The Montgomery County and Prince George’s County ban the box laws prohibit criminal history inquiries until after the first interview, among other restrictions described in more detail here.

These laws were effective on Jan. 1 and Jan. 3, 2015, respectively.

Recommendations for employers

To comply with the new ban the box laws, covered employers hiring for positions located in any of these jurisdictions should consider taking the following steps:

  • Revise their employment application to remove questions about criminal history;
  • Modify their hiring procedures to delay any inquiry about criminal history until after the point in the application process identified in the applicable law;
  • Conduct an individualized assessment of applicants in Prince George’s County before rejecting applicants based on their criminal history and consider whether to do so in other jurisdictions given the EEOC’s April 2012 Enforcement Guidance; and
  • In Prince George’s and Montgomery counties, provide pre-adverse action notices to applicants being considered for rejection based on criminal history and final adverse action notices in those jurisdictions and in Chicago.

This was originally published on Littler Mendelson’s Workplace Privacy Counsel blog© 2015 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Philip L. Gordon is a Shareholder in the Denver office of the law firm Littler Mendelsonand is Chair of the firm's Privacy and Data Protection Practice Group. He has years of experience litigating privacy-based claims and counseling clients on all aspects of workplace privacy and information security. Contact him at pgordon@littler.com.

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