JRSA Forum. December 2013. Volume 31, Number 4.

Illinois Task Force Inventories Employment Restrictions for Persons with Criminal Records

Mark Myrent, Director, Illinois Statistical Analysis Center

Many persons with criminal records experience the consequences of their justice system involvement for years afterwards. These so-called "collateral consequences" may include restrictions on eligibility for public assistance such as housing and food stamps, limits on educational loans, and loss of eligibility for adoption of children. Perhaps of greatest consequence, however, are the restrictions placed on employment opportunities. Legislation at both the federal and state levels precludes the hiring of people convicted of certain crimes into a variety of occupations, and prevents the attainment of licensure to practice an estimated 800 additional occupations. Some examples of regulated occupations include: ambulance drivers, school bus drivers, child care workers, attorneys, pharmacists, nurses, barbers, embalmers, real estate professionals, accountants, contractors, and sellers of alcoholic beverages.

In response to these issues, Illinois lawmakers passed Public Act 96-0593. As amended in 2012 (20 ILCS 5000), the Task Force on Inventorying Employment Restrictions Act called for a Task Force to review the statutes, administrative rules, policies, and practices that restrict employment of persons with a criminal history and report its findings and recommendations to the Governor and the General Assembly by July 1, 2013. It also required an analysis to be conducted within the Illinois Criminal Justice Information Authority, which was subsequently assigned to the Illinois Statistical Analysis Center (SAC).

The objectives and scope of work for the Task Force, or IERTF (Inventorying Employment Restrictions Task Force), were centered on reviewing statutes, administrative rules, and policies and practices that restrict employment of persons with a criminal history, and reporting those restrictions and their impact to the Governor and General Assembly. Further, the IERTF was to identify any employment restrictions that are not reasonably related to public safety.

The IERTF met monthly between mid-year 2012 and mid-year 2013 to consider the various aspects of its statutory charge and to formulate its recommendations. Speakers were invited to present information to the IERTF regarding the current processes for state agency hiring and licensing and the procedures in place for agencies to conduct criminal background checks. In addition, ex-offenders were invited to speak to the members on how the laws that have been passed over the years have impeded their efforts to seek and obtain employment.

During the course of its work, the IERTF often referenced guidance published by the U.S. Equal Employment Opportunity Commission (EEOC), which ultimately served as a foundation for many of the Task Force's recommendations (EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964). Because African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population, the EEOC takes the position that "blanket" restrictions based on criminal history - whereby any previous conviction serves as a disqualification regardless of other factors - can create a disparate impact on employment. This occurs when an employer's neutral policy or practice has the effect of disproportionately screening out a group protected under Title VII of the Civil Rights Act of 1964, based on an individual's race, color, religion, sex, or national origin.

Each of the 72 Illinois state agencies, boards, and commissions named in the legislation was required to submit to the IERTF a description of its employment restrictions based on criminal records. These restrictions were to be described for positions within the agency; for employment in facilities licensed, regulated, supervised, or funded by the agency; for employment pursuant to contracts with the agency; and for employment in occupations that the agency licenses or provides certifications to practice.

The original intent of the IERTF was to use the state agency reports as its primary source of information, but since many agencies sent in their reports well after the deadlines imposed by the IERTF Act, the Task Force identified and accessed other reputable employment restriction information, including lists of occupational licenses that are barred to persons with a felony record, and of mandatory restrictions pertaining to state agency positions from the state's Legislative Research Unit.

In addition, staff obtained a compilation of over 600 Illinois statutes and administrative codes from the American Bar Association (ABA) as part of its National Inventory of Collateral Consequences of Conviction project (http://www.abacollateralconsequences.org/). However, the ABA project has a broader scope than the charge of the Task Force. The purpose of that project is to document the collateral consequences that currently exist in all 50 states, U.S. territories, and at the federal level in areas beyond state employment and occupational licensing, such as housing and civic participation. Therefore, staff spent considerable time identifying which statutes were related directly to employment restrictions.

Illinois statutes and administrative rules related to employment were collated into categories called for by the IERTF Act. These include statutory restrictions related to: the state hiring process; occupational licensing, certification, and regulation by state agencies; education and training required for state positions; non-occupational licensure that may be a condition of employment, such as the requirement that a candidate be qualified for a Firearms Owner ID (FOID) card in order to hold certain positions; military and law enforcement hiring processes; and other miscellaneous categories. Staff then merged that information with documentation from the agency reports to obtain the most comprehensive view possible of Illinois employment restrictions.

In order to provide context for the various state statutes and administrative codes restricting state employment and occupational licensing, and to provide a more complete picture of each of the state agency hiring and licensing processes, staff developed a standardized template and created a "fact sheet" for each state agency. These fact sheets were then used to compile the statutory, regulatory, and agency policy restrictions on both internal hiring and occupational licensing into one summary spreadsheet.

This documentation showed that 28% of state agencies have specific statutory or regulatory restrictions and 38% impose their own policy restrictions on positions (not mutually exclusive). Twenty-nine percent have no restrictions related to criminal history. For those having restrictions, 27% have mandatory restrictions, meaning there are no mechanisms for waiver or appeal, 34% have discretionary restrictions, and 39% have both. It was also found that 60% require job applicants to self-disclose their criminal background on application materials, and 28% obtain criminal history information other than from self-report.

Twenty-four state agencies, or nearly a third of all agencies under consideration, were found to be involved with issuing occupational licenses, certificates, or permits that had a restriction based on an applicant's prior criminal record. Together these agencies are responsible for almost 200 such licenses. Based on the summary sheet compiled by staff, there were 318 separate statutes restricting the various occupational licenses. These restrictions were almost evenly split between mandatory and discretionary restrictions. The final report lists the specific restrictions for each license, and distinguishes between those restricted for any type of conviction and those restricted for a felony conviction. In many cases, blanket provisions mean that nonviolent, first-time offenders are subject to the same restrictions as hardened criminals.

IERTF Recommendations

The Task Force relied heavily on EEOC guidance on how to consider an individual's criminal history in a way that does not risk disparate impact. Their reasoning essentially promotes the following employment principles:
a) Applicants should be given individualized consideration for opportunities;

b) Applicants' records should also be considered through the lens of "business necessity," which weighs the applicants' record, the amount of time since the offenses took place, and the relation of the offenses to the applicants' fitness or ability to perform the job against the need for employers to have a safe work environment for all; and

c) Entities should reconsider whether lifetime bans to opportunities comport with the business necessity test noted above.

With these principles serving as overarching standards, the Task Force produced 14 recommendations, which are summarized below:

Criminal history self-disclosure

1. The State of Illinois should adopt the EEOC recommendation that for state hiring purposes, employers not ask about convictions on job applications, but if they do make such inquiries, they be limited to convictions related to the job in question and be consistent with business necessity.

2. Each agency may elect to use a criminal records self-disclosure form as a part of its hiring process. Agencies that elect to use such a form shall adhere to a statewide policy that permits the form to be requested and considered only after the candidate's other qualifications for a specific position are considered.

Criminal history background checks

3. Each agency shall adopt an "Authorization for Release" form that requests applicants' permission to obtain information relating to their criminal history. These forms shall exclude any reference to self disclosure of criminal records.

4. If criminal history background checks are conducted, unless otherwise specified under statute or administrative rule, procedures for conducting checks shall ensure that an applicant's permission is received for that check, that criminal history transcripts can be included as part of a nexus review (i.e., a review of whether an applicant's criminal history is related to job duties) , that the applicant has an opportunity to review the transcript, and that the applicant has an opportunity to challenge or correct the record.

5. Each state agency shall adhere to a statewide policy that permits criminal background checks to be requested and considered only after a candidate's other qualifications for a specific position are considered. Once a criminal background check is received, the agency shall determine whether there is a nexus between the position to be filled and the candidate's criminal history. State agencies, boards, and commissions shall not inquire into nor use an arrest or a criminal record that has been ordered expunged, sealed, or impounded in the nexus review unless otherwise authorized by law.

Consideration of applicant's criminal history

6. Each agency shall establish a documented nexus review process for the evaluation of a candidate's criminal record information. The review process shall only exclude a candidate relative to his/her criminal history where it is determined that exclusion is job-related and consistent with business necessity.

7. All state agencies, boards, and commissions shall develop a process by which the applicant is informed that he or she may be disqualified for the specific position applied for due to past criminal convictions, and will provide to the applicant a copy of their criminal background check.

Publication of agency restrictions and review procedures

8. All state agencies shall initiate an internal review of all licensure requirements and determine whether existing restrictions are based on job-related criteria consonant with business necessity.

9. All state agencies shall create, implement, and make publicly available their internal administrative review process. The applicant shall be provided an opportunity to demonstrate that the restriction should not apply to him or her, and to provide relevant information that may impact the agency's determination regarding the disqualification.

10. All state agencies shall make physically and electronically available to the public information which clearly identifies requirements and any job restrictions related to criminal history specified in statute, administrative rule, or agency policy, as well as any administrative review rights.

Resources for individual applicants

11. An Illinois Reentry Employment Resource Center shall be created within state government to serve as a resource to all state agencies and to persons with criminal records regarding licensure and employment. The center should provide guidance to persons with criminal records, request pertinent information from agencies, boards, and commissions, and answer procedural questions.

12. The Illinois State Police shall establish a help desk phone line for individuals who seek resource assistance for the purpose of understanding criminal record documents. Resources for hiring and licensing agencies

13. Each agency shall conduct annual training of all human resources department staff and hiring managers on its state hiring policies for individuals with criminal records.

14. The viability for future studies to determine the outcomes of decisions to hire or license persons with criminal records should be explored.