February 3, 2015
By Jacqueline M. Litra
The Opportunities for Qualified Applicants Act, which took effect on January 1, 2015, prohibits employers and employment agencies from inquiring about, considering or requiring disclosure of applicants’ criminal history until an applicant has been: (1) determined qualified for an interview and notified of his/her selection for an interview; or, (2) if there is no interview, after a conditional offer of employment is made. Some of our clients have expressed confusion over how this new law impacts them.
The Act defines “Employer” as any person or private entity that has 15 or more employees and any agent of such an entity or person. School Districts do not fit within this definition of “Employer” because they are public, not private entities. Additionally, the Act expressly states that the prohibited pre-screening practices do not apply to positions where employers are required to exclude applicants with certain criminal convictions from employment by state or federal law. The pre-screening practices prohibited by the Act are allowed for school districts because school districts are required to review criminal history reports for employees and are prohibited from employing individuals with certain convictions.
As a result of the new law, the Illinois Association of School Boards, through its PRESS policy service, recommended changes regarding candidate criminal histories through its proposed Administrative Procedure (Interview Questions for Board Policy 5:30). In our opinion, the proposed revision provides an overly conservative approach to inquiring about criminal convictions. School districts can still inquire as to whether an applicant has ever been convicted of a crime, especially at an interview. In addition, it is possible that attempting to utilize the broad classifications of offenses in the Administrative Procedure’s recommended question could result in applicants failing to report a relevant conviction because he/she is unfamiliar with the offenses included in each broad category.
Accordingly, we advise that school districts are not required to follow the new language on convictions in the IASB Administrative Procedure – Interview Questions or to change their pre-screening practices as a result of the Opportunities for Qualified Applicants Act.
If you have any questions regarding appropriate employment practices, please contact your attorney at Scariano, Himes and Petrarca, Chtd.