Illinois Employee Background Fairness Act: Grounds, Factors, and Notice

The Illinois Employee Background Fairness Act, in effect since March 23, 2021, bars employers from rejecting or firing you over a criminal conviction unless the offense is substantially related to the job or would create an unreasonable safety risk, and even then the employer must weigh six specific factors, send you a written preliminary notice, and give you at least five business days to respond before the decision becomes final. The rules sit at 775 ILCS 5/2-103.1 inside the Illinois Human Rights Act, and they apply to most employers operating in the state.¹ If an employer skips any of that, you can file a charge with the Illinois Department of Human Rights.

What Records the Law Reaches

The definition of “conviction record” is wide. It covers convictions for any felony, misdemeanor, or other criminal offense, along with records of probation, fines, imprisonment, or parole under any law enforcement or military authority.² Whether you served prison time, got probation, or just paid a fine on a low-level charge, the same protections attach.

Arrests that never produced a conviction are a different story, and the protection is actually stronger. Under 775 ILCS 5/2-103, it is a civil rights violation for any employer, employment agency, or labor organization to inquire into or use an arrest record in any employment decision.³ There is no substantial-relationship exception here. The one narrow carve-out: an employer may consider independent evidence that a person actually engaged in the conduct underlying the arrest, but not the arrest itself.

Which Employers Have to Follow It

The Illinois Human Rights Act defines “employer” as any person or entity that employed one or more people within Illinois for 20 or more calendar weeks in the current or preceding calendar year.³ Government agencies, public contractors, and joint apprenticeship committees are covered regardless of headcount.⁴ Employment agencies and labor organizations are covered too.

Some employers sit outside the framework. Religious organizations, places of worship, and certain faith-based institutions are exempt where the employment decision relates to their religious mission. Elected officials and their immediate personal staff, principal administrative officers of government bodies, and individuals in certain vocational rehabilitation programs also fall outside the “employee” definition.³

The Two Grounds an Employer Needs

Using a conviction to deny, terminate, or otherwise affect employment is a civil rights violation unless one of two conditions is satisfied.¹

The first is a substantial relationship between the conviction and the job. The statute frames this as whether the position offers the opportunity for the same or a similar offense to occur, and whether the circumstances that led to the conviction would recur in the role. A fraud conviction has an obvious connection to a job handling client money. That same conviction has no obvious connection to a warehouse position.

The second is unreasonable risk. The employer can show that hiring or continuing to employ the person would create an unreasonable risk to property or to the safety of specific individuals or the general public. Blanket disqualification policies that skip this analysis violate the law.

The Six Factors an Employer Must Weigh

Clearing the substantial-relationship or safety threshold is not the end of the analysis. Before making a preliminary decision to disqualify, the employer must consider all six of these factors:³

How much time has passed since the conviction. Older convictions carry less weight.
The number of convictions. A single offense reads differently than a pattern.
The nature and severity of the offense and its relationship to the safety and security of others.
The facts and circumstances surrounding the conviction.
The individual’s age at the time of the offense.
Evidence of rehabilitation, which can include education, vocational training, steady employment, and community involvement.

These factors are mandatory. An employer who moves straight from a background check hit to a rejection has skipped a required step.

The Notice and Response Process You’re Entitled To

If, after weighing those factors, an employer still leans toward disqualifying you, the law requires a structured exchange before the decision becomes final.

The Written Preliminary Notice

The employer must send you a written notice with three elements: the specific conviction or convictions driving the decision along with the employer’s reasoning, a copy of the conviction history report if one was used, and an explanation of your right to respond before the decision is finalized.¹ That explanation must tell you that you can submit evidence challenging the accuracy of the record, or evidence of mitigation such as rehabilitation.⁵

The point of the notice is transparency. Applicants regularly discover errors on their reports at this stage, from convictions belonging to someone else to dismissed charges recorded as convictions. Without the notice, those errors would silently cost people jobs.

At Least Five Business Days to Respond

Once the preliminary notice goes out, you get at least five business days to respond before the employer can finalize the decision.³ The window is a floor. Your response can include anything relevant: proof the record is inaccurate, documentation of rehabilitation, letters of recommendation, program completion certificates, or context about what actually happened.

The Final Decision Notice

If the employer proceeds with disqualification after considering your response, a second written notice is required. It must again identify the disqualifying conviction and the reasoning, describe any internal procedure the employer offers for challenging the decision or requesting reconsideration, and inform you of your right to file a charge with the Illinois Department of Human Rights.¹ Missing any of those elements means the process was not completed.

When Federal Law Overrides These Protections

The statute opens with “unless otherwise authorized by law.” Some federal disqualification rules override the state analysis in specific industries, but even then the employer still owes you notice and an opportunity to respond.⁵

In banking, Section 19 of the Federal Deposit Insurance Act bars anyone convicted of certain offenses from participating in the affairs of an FDIC-insured institution without written FDIC consent.⁶ The Fair Hiring in Banking Act, signed in December 2022, narrowed which offenses are covered, and an updated FDIC rule took effect in October 2024. The restriction still applies to many convictions, and a covered employer must still send you the notice and the five-business-day window even when relying on the federal bar.

In healthcare, the federal Office of Inspector General is required to exclude individuals with certain convictions from all federal healthcare programs. The mandatory minimum exclusion is five years for offenses tied to healthcare fraud, patient abuse or neglect, and controlled substance felonies, among others. A second mandatory exclusion offense triggers a 10-year exclusion, and a third is permanent.⁷

Filing a Charge if the Employer Skips the Process

The Illinois Department of Human Rights enforces the Human Rights Act, including the conviction record rules.⁸ If an employer rejected you without providing the written notices, without naming the specific conviction, without giving you at least five business days to respond, or by applying a blanket ban, that is likely a civil rights violation and you can file a charge.

As of January 1, 2025, you have two years from the date of the alleged violation to file a non-housing charge with IDHR, expanded from the previous 300-day deadline.⁹ Two years sounds like a lot until you consider that many people don’t realize their rights were violated until well after the fact. Don’t wait.

After you file, the case moves through intake, optional mediation, investigation, and a findings determination. If IDHR finds a violation, the matter can proceed to a hearing before the Illinois Human Rights Commission, which can order back pay, hiring or reinstatement, and other relief.

How to Protect Yourself Before and During a Job Search

Request a copy of your own criminal history from the Illinois State Police before you start applying. Knowing exactly what an employer will see puts you in a much stronger position if a preliminary notice arrives, and it gives you time to correct anything wrong on the record.

If a preliminary notice does arrive, use the full five-business-day window. Pull together training certificates, employment records from the years since the conviction, letters from supervisors or community leaders, and anything documenting errors in the report. Reporting errors are more common than most people expect, and the response window is your chance to catch them.

Keep every piece of correspondence. Save the initial notice, your response, the final decision letter, emails, application confirmations. A charge with IDHR is far stronger when you can show exactly what the employer sent, what you sent back, and when.

1
Illinois General Assembly. Illinois Compiled Statutes 775 ILCS 5/2-103.1 – Conviction Record
2
Illinois General Assembly. Illinois Compiled Statutes 775 ILCS 5/1-103 – General Definitions
3
Justia. Illinois Code Chapter 775 Act 775 ILCS 5 – Article 2 Employment
4
Illinois Department of Human Rights. Employment
5
Illinois Department of Human Rights. Conviction Record Protection – Frequently Asked Questions
6
FDIC. Section 19
7
Office of Inspector General. Background Information and Exclusion Authorities
8
Illinois Department of Human Rights. Filing a Charge
9
Illinois Department of Human Rights. IDHR Extends Statute of Limitations Period