Employee Background Check Laws in Illinois

Illinois imposes significantly stricter requirements than federal law. The Illinois Human Rights Act (775 ILCS 5/2-103) and the Criminal Records Act (20 ILCS 2630) create a multi-step process for employers considering criminal history in hiring. First, Illinois employers cannot use criminal history records unless the conviction is directly related to the duties or responsibilities of the job or presents an unreasonable safety risk to persons or property. This is far more restrictive than the FCRA, which only requires reasonable procedures without explicitly prohibiting conviction screening.

Second, Illinois requires employers to conduct an individualized assessment of rehabilitation before considering conviction records. Under 20 ILCS 2630/5.2, known as the "Ban the Box" law, private employers with 15 or more employees cannot inquire about criminal history during the application process. Public employers cannot inquire until after a conditional job offer is made (with rare exceptions for specified positions). This means employers must delay conviction inquiries until later in the hiring process, protecting applicants from automatic disqualification.

Third, 20 ILCS 2630/5 requires employers to notify applicants in writing that they are considering denying employment based on criminal records and must allow at least five business days for the applicant to respond with evidence of rehabilitation or mitigating factors. Illinois employers must consider factors such as the age of the conviction, the sentence imposed, the applicant's work history since conviction, and the nature of the job. Employers cannot rely solely on the existence of a conviction.

The Illinois Department of Human Rights (IDHR) enforces these provisions alongside the federal EEOC. Remedies under Illinois law include actual damages, punitive damages up to $1,000 per violation, injunctive relief, and attorney's fees. Illinois's statute of limitations is three years from the date of the alleged violation (775 ILCS 5/8-109), which is longer than federal FCRA limits. Illinois law also protects applicants from retaliation for challenging background check procedures.

The Ban the Box law's prohibition on pre-offer criminal history inquiries has several exceptions. Illinois employers can inquire about criminal history before making an offer if the position involves: direct unsupervised access to children, the elderly, or persons with disabilities; fiduciary duties; access to controlled substances or medications; driving a commercial vehicle; security work; or work with law enforcement. Additionally, employers in regulated industries (such as banking, insurance, or positions requiring state licensure) may have different requirements based on federal or state licensing boards.

Employers are not liable for inaccurate criminal history information obtained from third-party background check companies if the employer reasonably relied on the report in compliance with FCRA procedures. However, Illinois employers must still follow the individualized assessment requirement even if relying on a background check report. The law does not prohibit employers from requesting criminal history information in other ways (such as direct inquiries during an interview after the initial application, provided the timing complies with the Ban the Box law).

Convictions sealed or expunged under Illinois law (705 ILCS 405) cannot be used against applicants. Employers cannot inquire about arrests that did not result in conviction, with narrow exceptions for pending cases relevant to job duties. The exception for directly related job duties is narrowly construed; employers cannot assume a connection based on speculation or statistical likelihood. For example, a retail employer could not automatically exclude all applicants with theft convictions without assessing the specific job duties of the position in question.

Step 1 — Document Everything. Keep records of all communications from the employer regarding the background check, including the authorization form you signed, the adverse action notice received (if any), and any response you submitted to the employer. Request in writing a copy of the actual background report from the consumer reporting agency and note the date and method of each communication with the employer about the check. Save emails, letters, and notes on conversations (including dates, times, and names of individuals spoken with).

Step 2 — Internal Complaint Process. Before filing with an agency, send a written letter to the employer's human resources or hiring manager requesting clarification on why the background check resulted in adverse action. Under Illinois law, you have the right to respond to adverse action notice; if you did not receive written notice including a clear opportunity to respond within 5 business days, document this violation. Request a written explanation of which specific background check information was used to deny employment and how it relates to the job duties or safety risk. Keep a copy of this letter for your records.

Step 3 — File with Illinois Department of Human Rights. The IDHR enforces the Criminal Records Act and Illinois Human Rights Act. File a charge of discrimination (or unfair practice) at https://www2.illinois.gov/dhr/Pages/default.aspx. You can file online, by mail (IDHR, 100 W. Randolph St., Suite 10-100, Chicago, IL 60601), or by phone at (217) 785-0400. The deadline to file is 3 years from the date of the alleged violation under Illinois law (significantly longer than the federal 180-day FCRA deadline with the FTC). Your complaint should include: your name and contact information, the employer's name and address, the date the background check issue occurred, a detailed description of how the employer violated the Criminal Records Act (specifically which of the 20 ILCS 2630 requirements were violated), and copies of all documentation (adverse action notice, background report, authorization form, your written response if applicable).

Step 4 — Expect Investigation Process. The IDHR will assign an investigator to your case. The typical investigation timeline is 180 days, though complex cases may take longer. The investigator will contact the employer for their response and will request copies of the background check, your application materials, and the authorization form. You may be asked to provide additional information or a sworn statement (affidavit). The investigator will determine whether reasonable cause exists to believe the employer violated state law. If reasonable cause is found, the IDHR may attempt conciliation. If conciliation fails, the case may proceed to hearing before the Illinois Human Rights Commission. You will receive a written determination of whether a violation occurred. If you disagree with the IDHR's determination, you can request a hearing.

Step 5 — Consult an Employment Attorney. Contact a civil rights attorney or employment law attorney licensed in Illinois if: the employer failed to provide written consent for the background check, failed to provide adverse action notice, failed to allow 5 business days to respond, or used criminal history information for a job where it is not directly related to duties or presents no unreasonable safety risk. An employment attorney can also help if you believe the employer violated Title VII by using the background check in a way that has a disparate impact based on protected class status. Many employment attorneys in Illinois offer free initial consultations and may take cases on contingency (where attorney's fees are paid from recovery). You can also contact the Illinois State Bar Association (https://www.isba.org) for a referral.