Below is information an employer can use during the hiring process in Illinois. To see if you are eligible for one of our criminal record clearing services, take our FREE Eligibility Check.
The State of Illinois allows for employers to perform background checks on their potential employees during the course of their hiring process. This can be a problem for individuals that are seeking employment but have a criminal record. One of the major concerns of individuals seeking post-conviction relief is whether or not a potential employer can view their conviction history after they complete the processes of expungement or sealing. Some of the common questions are whether or not a potential employer can view an arrest record, if an arrest record can be considered if it did not lead to a conviction, and whether or not a case can be considered when an individual has been found guilty of a crime, but has complied with the supervision requirements and received a judgment dismissing the charges.
The Illinois Compiled Statutes lay out the regulations on what an employer can and cannot consider when viewing the criminal history of a potential employee in 775 ILCS 5/2-103. This statute states that it is a civil rights violation for a potential employer to inquire about any arrest records that did not lead to a conviction, or any conviction that has been dismissed, sealed, or expunged. The same goes for individuals that were found guilty of a crime, complied with the supervision requirements, and received a judgment dismissing their charges. While an employer may be able to view the details of an arrest after performing a background check, they are not allowed to inquire about any criminal history that did not lead to a conviction at any time. If an employer does ask about the circumstances surrounding an arrest that did not lead to a conviction they are in violation of ILCS 2/2-103, and the individual does not have to provide an answer.
It is also considered a civil rights violation for an employer to take cases that have been sealed, expunged, or dismissed into account when determining whether or not to hire a potential employee. This means that once an individual's conviction has been sealed, expunged, or dismissed an employer cannot use the former conviction against that individual when determining if the individual should be hired or not. If an employer does take a case that has been sealed, expunged, or dismissed into account when determining whether or not to hire an individual, they are in violation of ILCS 5/2-103.
The ILCS 5/2-103 goes even farther to guarantee that such cases cannot be used to determine whether or not an employee deserves a promotion, discipline, whether or not the employee deserves to be selected for apprenticeship or training, tenure, whether they deserve renewal of employment, or any other privileges of employment. This is to guarantee that after an employee is hired, the employee can go about the course of their employment without having to fear that their sealed, expunged, or dismissed case could cause them to be discriminated against in the future.
This statute, however, does not stop a state agency, unit of local government, school district, or private organization (including employers) from accessing using a sealed felony conviction against a potential employee when they find that the felony conviction is relevant to the character of the employee and the position that they are seeking with the agency or organization. This means that if a person's sealed, expunged, or dismissed case has charges that are relevant to or would call into question the individual's reliability to honestly perform in a certain field of employment, then the employer does have the right to take that sealed, expunged, or dismissed case into account. While there is not a statute that specifically details what private organizations can access your records, one can assume that, for example, a bank may take into consideration a fraud charge, or a hospital may consider a drug charge when determining the future employment potential of an applicant.
While 775 ILCS 5/2-103 does not allow an employer to consider criminal history information in the aforementioned situations, it does not stop a potential employer from obtaining other information relating to an arrest that may indicate that the individual actually did engage in the illegal conduct that lead to his or her arrest.
All-in-all, most employers can only consider existing convictions that have not been dealt with through channels of post-conviction relief. If an arrest did not lead to a conviction, or if a case has been sealed, expunged, or dismissed by other means, then most employers cannot utilize that information to decide the future employment status, or any other aspect of employment once an individual is already hired.
Please contact RecordGone.com if you are looking to have your criminal record expunged or if you have experienced employment discrimination that violates the laws discussed in this article. You can see if you are eligible for expungement by going to https://www.recordgone.com/eligibility/.
By Katharine Gemmill
Ms. Katharine Gemmill works with supervising attorneys for all cases in the RecordGone.com division, and she assists with criminal defense cases. Ms. Gemmill graduated from California State University, Fullerton with a Bachelor's Degree in English. She earned her Paralegal Certificate from University of California, Los Angeles in 2011.