Illinois ban-the-box law: when recruiters can ask about records

Illinois has two fair chance rules that work together. The Job Opportunities for Qualified Applicants Act sets the timing: an employer with 15 or more employees, or an employment agency, may not ask about criminal history until the applicant has been judged qualified and told they are selected for an interview, or, with no interview, until after a conditional offer. The Illinois Human Rights Act then controls the decision: an employer may not use a conviction record without a substantial relationship to the job or an unreasonable risk, must weigh six factors, and must send written notices with at least five business days to respond.

The two statutes

The Job Opportunities for Qualified Applicants Act (820 ILCS 75)

Section 15(a) of the Act says an employer or employment agency "may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview," or, if there is no interview, "until after a conditional offer of employment is made." Section 15(c) allows an employer to tell applicants in writing which specific offenses will disqualify them for a position because of federal or state law or the employer's policy.

The Human Rights Act (775 ILCS 5/2-103 and 2-103.1)

Section 2-103.1, added by P.A. 101-656 effective March 23, 2021, makes it a civil rights violation for an employer, employment agency or labor organization to use a conviction record as a basis for hiring and other decisions unless "there is a substantial relationship between one or more of the previous criminal offenses and the employment," or the employment "would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public." Section 2-103 separately bars inquiring into or using an arrest record, unless otherwise authorized by law.

Who is covered

The difference matters: a 10-person employer is outside the timing rule but inside the Human Rights Act's assessment and notice rules.

Exceptions to the timing rule

Section 15(b) of 820 ILCS 75 lifts the timing rule for positions where:

• employers are required to exclude applicants with certain convictions because of federal or state law;
• a standard fidelity bond or equivalent is required and certain convictions would disqualify the applicant from the bond, in which case the employer may ask about those offenses; or
• the employer employs people licensed under the Emergency Medical Services (EMS) Systems Act.

When the question may be asked

Illinois allows the question earlier than California or New York City, but a recruiter's first call usually comes before the applicant is "selected for an interview," so the screen is still off limits. Many multi-state teams simply leave the question to the post-offer background check everywhere.

The assessment and notices before a rejection

Under 2-103.1(B), the employer must consider:

1. the length of time since the conviction;
2. the number of convictions on the record;
3. the nature and severity of the conviction and its relationship to the safety and security of others;
4. the facts or circumstances surrounding the conviction;
5. the age of the person at the time of the conviction; and
6. evidence of rehabilitation efforts.

"Substantial relationship" is defined as whether the job offers the opportunity for the same or a similar offense and whether the circumstances that led to the conduct will recur in the job. If the employer makes a preliminary decision to disqualify, 2-103.1(C) requires a written notice containing the disqualifying conviction or convictions "and the employer's reasoning," a copy of the conviction history report if any, and an explanation of the right to respond, including with evidence challenging accuracy or evidence in mitigation. Unlike California, Illinois requires the reasoning in the notice. The person then has at least five business days to respond. A final decision must be in writing and include the disqualifying conviction and reasoning, any procedure to challenge it or request reconsideration, and the right to file a charge with the Department of Human Rights.

Staffing agencies and recruiters

Illinois names agencies directly. The Act defines an employment agency as any person or entity "regularly undertaking with or without compensation to procure employees for an employer," including its agents, and section 15 applies to it in the same words as to employers. Sections 2-103 and 2-103.1 cover employment agencies too. A recruiter who asks about a record on the first call is the employment agency the statute describes, whatever the client's instructions.

Penalties and enforcement

The Illinois Department of Labor investigates violations of 820 ILCS 75. Under section 20, as amended by P.A. 104-2:

• first violation: a written warning, with 30 days to remedy;
• second violation, or a first not remedied within 30 days: a civil penalty of up to $500;
• third violation, or a first not remedied within 60 days: an additional penalty of up to $1,500;
• later violations, or a first not remedied within 90 days: up to $1,500 more for every 30 days without compliance.

Human Rights Act violations go through a charge with the Illinois Department of Human Rights. One more change to note: P.A. 104-776 adds a section 17 to 820 ILCS 75, effective January 1, 2027, limiting job postings that require a valid driver's license unless driving is an essential function and a business necessity. Local ordinances may add rules; we did not check Illinois city or county ordinances for this page.

How it fits with FCRA adverse action

If a screening company runs the check, the federal FCRA's pre-adverse action notice, with a copy of the report and the summary of rights, and the final adverse action notice still apply. In practice the Illinois preliminary notice and the FCRA pre-adverse notice go out together, the five business day response period runs before any final decision, and the final notice combines the FCRA items with the Illinois items, including the right to file a charge. The federal steps are in our FCRA background check guide; template wording is in background check notification emails.

A script for Illinois screens

The candidate volunteers a conviction: "Thanks for telling me. It isn't part of this stage, so I won't ask about it or write it down. If it becomes relevant, it's handled later through a formal process where you'd get a copy of anything relied on and time to respond."

The candidate mentions an arrest: "That isn't something employers in Illinois consider, so there's no need to go into it." Then return to the role.

The client wants records checked before interviews: "In Illinois the earliest point is once the candidate is selected for an interview, and the decision then needs the six-factor review and written notices. I'd rather leave it to your post-offer check."

An Illinois checklist for recruiting desks

1. Remove criminal history questions from applications, screening questionnaires and ATS knockout questions for Illinois roles.
2. Keep the topic out of recruiter screens entirely; the earliest legal point is after selection for interview.
3. Never ask about or record arrests.
4. Keep anything volunteered out of submittals and notes. See what not to write in interview notes.
5. Agree with the client who performs the six-factor assessment and who sends the preliminary and final notices.
6. For federal background and general scripts, see ban-the-box laws and interview questions.