What legal obligations does an Illinois business have when conducting background checks on potential employees?

Under Illinois law, businesses conducting background checks on potential employees must comply with the Illinois Human Rights Act (IHRA) and the federal Fair Credit Reporting Act (FCRA).

The IHRA prohibits employers from discriminating against job applicants on the basis of race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, sexual orientation, or gender identity. The IHRA also prohibits employers from inquiring about an applicant's criminal history until after the employer has determined that the applicant is qualified for the position and has been notified of an interview or, if there is no interview, until a conditional offer of employment has been made.

The FCRA requires employers who use consumer reports or background checks to follow certain procedures, including obtaining the applicant's written consent, notifying the applicant if adverse action is taken based on the report, and providing the applicant with a copy of the report if adverse action is taken. The FCRA also requires employers to ensure that the information in the report is accurate and up-to-date.

Additionally, Illinois employers who conduct background checks must comply with the Illinois Employee Credit Privacy Act, which limits an employer's ability to request or use an employee's credit history in employment decisions.

Some potential limitations or exceptions to this advice include the fact that some employers, such as those in certain industries or those working with vulnerable populations, may have additional requirements or restrictions regarding background checks. Further action may be necessary to confirm compliance with any industry-specific or population-specific background check requirements.

As a general recommendation, businesses should develop policies and procedures that comply with all applicable laws and ensure that all employees involved in the hiring process are trained on these policies and procedures. Employers should also consider working with legal counsel or a background check provider with expertise in compliance to ensure that their practices are lawful and effective.