HB5334 100TH GENERAL ASSEMBLY

LRB100 19521 JLS 34788 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5334

Introduced , by Rep. Sonya M. Harper

SYNOPSIS AS INTRODUCED:

New Act

Creates the Employee Background Fairness Act. Provides that an employer may not refuse to hire an individual and may not discharge an individual because of the individual's criminal history unless the individual has one or more convictions and there is a direct relationship between one of more of an individual's convictions and the specific employment sought. Prohibits retaliation for exercising rights under the Act. Provides that an individual denied or discharged from employment because of his or her criminal history in violation of the Act may recover from the employer in a civil action: (1) damages in the amount of $2,000 or actual damages, whichever is greater; (2) costs and such reasonable attorney fees as may be allowed by the Court; and (3) any other relief as may be appropriate, including punitive damages. Defines terms. Effective immediately.

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Employee Background Fairness Act.

Section 5. Definitions. As used in this Act:

"Applicant" means any person pursuing employment with an employer.

"Conviction" means a judgment of guilt or nolo contendere or any disposition arising therefrom, including sentencing, correctional supervision, rehabilitation, or release. "Conviction" does not include qualified probation or an order of supervision, as those terms are used in Section 5.2 of the Criminal Identification Act, that has been discharged or dismissed shall not be deemed a conviction.

"Criminal history" means an arrest, complaint, indictment, or any disposition arising therefrom.

"Criminal history record information" means records of arrest, complaint, indictment, or any disposition arising therefrom.

"Criminal history report" means any written, oral, or other communication of information that includes criminal history record information about a natural person.

"Direct relationship" means the nature of criminal conduct for which the applicant was convicted has a direct bearing on his or her fitness or ability to perform one or more of the duties or responsibilities necessarily related to the employment in question, and does not include whether a criminal history has a bearing on an applicant's character or trustworthiness generally.

"Employee" means an individual who receives compensation for performing services for an employer under an express or implied contract of hire.

"Employment" means any occupation or vocation for which an individual receives compensation for performing services for an employer under an express or implied contract for hire.

"Employer" means an individual or entity that permits one or more individuals to work or that accepts applications for employment or is an agent of an employer.

Section 10. Use of criminal history record information.

(a) Except when the hiring of an employee is prohibited by law, an employer shall not fail or refuse to hire or recruit and shall not discharge an individual because of the individual's criminal history unless:

(1) the individual has one or more convictions; and

(2) there is a direct relationship between one or more of an individual's convictions and the specific employment sought.

(b) An employer who refuses to hire or discharges an individual because of his or her criminal history shall provide the individual a written notice that includes:

(1) the specific conviction or convictions that bear a direct relationship to the employment sought or for which there is a federal, State, or local law prohibiting the employer from employing the individual;

(2) a clear statement informing the individual that he or she may provide information to the employer (A) that the criminal history record information is inaccurate or (B) that there are mitigating circumstances that demonstrate the individual's fitness for the position including, but not limited to, activities since the date of the offense and evidence of rehabilitation;

(3) a period of no less than 7 days from the date of the notice within which the individual must provide such information to the employer; and

(4) a copy of any criminal history report about the individual obtained by the employer.

(c) An employer shall conduct a good faith, individualized assessment of any evidence of mitigation or rehabilitation and the individual's fitness for the position sought or about the accuracy of criminal history record information provided by the individual before making a final hiring or discharge decision.

(d) An employer must hold the position sought by the individual open until (A) the individual provides additional information and the review of that information under subsection (c) is complete or (B) until the period to provide additional information has expired if no information is provided. At or before the employer fills the position, the employer must provide the individual with a final written determination that includes the following:

(1) a statement of the employer's final determination;

(2) a description of an appeal process, if any; and

(3) the earliest date, if any, when the individual may reapply for the position.

Section 15. Retaliatory or discriminatory acts. A person may not retaliate or discriminate against a person because the person has done or was about to do any of the following:

(1) File a complaint under this Act.

(2) Testify, assist, or participate in an investigation, proceeding, or action concerning a violation of this Act.

(3) Oppose a violation of this Act.

Section 20. Waiver. An employer may not require an applicant or employee to waive any right under this Act. An agreement by an applicant or employee to waive any right under this Act is invalid and unenforceable.

Section 25. Remedies for violation of the Act. An individual denied or discharged from employment because of his or her criminal history in violation of this Act may recover from the employer in a civil action:

(1) damages in the amount of $2,000 or actual damages, whichever is greater;

(2) costs and such reasonable attorney fees as may be allowed by the Court; and

(3) any other relief as may be appropriate, including punitive damages.

Section 99. Effective date. This Act takes effect upon becoming law.