NLRB website Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), issued a memorandum on May 30, 2023, finding that except in limited special circumstances, non-competition agreements – including the act of merely giving employees non-competition agreements or maintaining existing ones – violate Sections 7 and 8 of the National Labor Relations Act (Act). The memorandum states, “Except in limited circumstances, I believe the proffer, maintenance, and enforcement of such agreements violate Section 8(a)(1) of the Act.”

Further, even though the NLRB is focused on employee organizing and the right to collective bargaining and on low- and middle-wage workers, the memorandum suggests a broader reach.

The memorandum is not the federal government’s first attack on non-compete agreements. The Federal Trade Commission (FTC) recently published for comment a proposed rule that would ban all forms of non-competition agreements except in the context of the sale of a business. While the comment period has ended, the FTC has yet to issue its final rule, which is almost certain to face challenge in the courts. Moreover, non-disclosure agreements and statutory trade secret protections would still be available to employers.

In her memorandum, Abruzzo found that “[g]enerally speaking, non-compete agreements between employers and employees prohibit employees from accepting certain types of jobs and operating certain types of businesses after the end of their employment.” She went on to say that “[n]on-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to the type and location of work.”

The five types of activities protected under Section 7 of the Act that Abruzzo believes are chilled by non-competes are:

  • “concertedly threatening to resign to demand better working conditions.”
  • “carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions.”
  • “concertedly seeking or accepting employment with a local competitor to obtain better working conditions.”
  • “soliciting their co-workers to go work for a local competitor as part of a broader course of protected concerted activity.”
  • “ seeking employment, at least in part, to specifically engage in protected activity with other workers at an employer’s workplace.”

Abruzzo conceded that there may exist “special circumstances” that justify the infringement of employee rights, however, “a desire to avoid competition from a former employee is not a legitimate business interest that could support a special circumstances defense.” Further, she believes some of the traditional legitimate business interests, such as retaining employees or protecting special investments in training, are unlikely to justify an overly broad non-compete “because U.S. law generally protects employee mobility, and employers may protect training investments by less restrictive means, for example, by offering a longevity bonus.” Finally, Abruzzo stated that “employers’ legitimate business interest in protecting proprietary or trade secret information can be addressed by narrowly tailored workplace agreements that protect those interests.”

Despite the above, Abruzzo concludes her memorandum stating that not all non-compete agreements necessarily violate the Act. While the memorandum does not go into detail, she does say that non-compete agreements may not violate the Act where:

  • “employees could not reasonably construe the agreements to prohibit their acceptance of employment relationships subject to the Act’s protection”;
  • “provisions that clearly restrict only individuals’ managerial or ownership interests in a competing business, or true independent-contractor relationships”; or
  • “a narrowly tailored non-compete agreement’s infringement on employee rights is justified by special circumstances.”

There are, however, a few things employers should keep in mind with respect to Abruzzo’s memorandum.

  • The Act only applies to certain categories of employees. For example, employees who fall within the Act’s definition of “supervisor” are not protected by it. Similarly, management employees are generally not within the Act’s coverage.
  • Abruzzo’s memorandum merely reflects her opinion of how the NLRB should rule if faced with a case involving a non-compete agreement. The NLRB, a five-member panel that interprets the Act, has not ruled on the matter.
  • NLRB decisions are subject to challenge in the federal courts. Thus, if the NLRB chooses to adopt Abruzzo’s position, a court challenge is likely to follow.

In light of Abruzzo’s memorandum and the FTC’s recently proposed rule, what are the action items for employers?

  • Employers who have entered into non-competition agreements with employees should closely follow any new developments on these issues.
  • Employers who have entered into non-competition agreements with employees should revisit those agreements to determine whether this memorandum and/or the FTC Rule affect them, as it is likely they are impacted by at least one of these.
  • Employers who regularly have employees enter into non-competition agreements at the start of their employment should determine whether that is a practice they should continue or if there is some other means to protect their business.
  • Where employers decide they will continue to use non-competition agreements, they should revisit those agreements to ensure they are narrowly tailored.
  • Employers should review their employee confidentiality agreements to ensure they are written so that they are enforceable as a means of protecting their business and that they are taking the appropriate steps to make sure such agreements are enforceable.
  • If employers do not regularly use employee confidentiality agreements, they should determine whether such agreements should be used to help them protect their competitive advantage.

On January 5, 2023, the Federal Trade Commission (FTC) published a proposed rule that, if finalized, would ban all employer non-compete agreements. As currently written, the proposed rule finds that it is unfair competition for an employer to:

  • Enter into or attempt to enter into a non-compete clause with a worker;
  • Maintain a non-compete clause with a worker;
  • Represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.

Under the proposed rule, a “non-compete clause” is defined as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” A “worker” includes, without limitation, an employee, individual classified as an independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service to a client or customer.

Under the proposed rule, as defined, a “non-compete clause” would not include restraints during employment, nor would it include other types of common contractual restrictions such as non-disclosure or confidentiality agreements, agreements for the repayment of training costs, agreements providing for the forfeiture of deferred compensation or benefits by competing workers, or agreements restricting a worker from soliciting clients, customers, or other workers. However, the proposed rule provides for a “functional test” under which such restrictions are prohibited if they act as de facto non-competes by being so broad as to have the effect of preventing workers from seeking or accepting other employment following separation from their employer. As a result, if the proposed rule goes into effect, employers should consider having their current non-solicitation clauses and confidentiality agreements reviewed to ensure that they are enforceable and cannot be interpreted as a means to prevent unfair competition under the proposed rule.

The proposed rule requires that employers take affirmative action to rescind existing non-compete clauses with workers no later than the compliance date set forth in the proposed rule, which is currently 180 days after the publication of the final rule. The employer must provide individual notice to each currently employed worker, as well as former workers for whom the employer retains contact information, that are subject to a non-compete clause, advising that the worker’s non-compete clause is no longer in effect and may not be enforced against the worker. The proposed rule provides suggested language for such notice.

In addition, the proposed rule would supersede any state statute, regulation, order or interpretation that is inconsistent with the rule. Thus, for example, in Illinois, the provisions of the Freedom to Work Act governing non-compete agreements in Illinois would no longer be enforceable.

Not all non-competes are prohibited under the proposed rule. Non-compete clauses that are entered into as part of the sale of a business, sale of all or substantially all of a business entity’s operating assets or as otherwise disposing of all of a person’s ownership interest in a business entity are not affected, provided that the person restricted is a substantial owner, member or partner in the business entity at the time the person enters into the non-compete clause.

Here is a link to the proposed rule: Comments are due by March 10, 2023, and may be submitted electronically to or mailed to Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex C), Washington, DC 20580.

The FTC’s supplementary information indicates that the regulator expects comment letters to focus on (1) whether the rule should impose a categorical ban on non-compete clauses or a rebuttable presumption of unlawfulness, or (2) whether the rule should apply uniformly to all workers or whether there should be exemptions or different standards for different categories of workers – senior executives vs. hourly employees, for example.

We will keep you apprised of future developments.

The Illinois Freedom to Work Act (“Act”) became effective on January 1, 2022. The Act prohibits employers from entering into covenants not to compete and covenants not to solicit with certain types of employees. Specifically, an employer cannot enter into a covenant not to complete with an employee unless that employee’s actual or expected annualized rate of earnings exceeded $75,000 per year. Similarly, an employer cannot enter into a covenant not to solicit with an employee unless that employee’s actual or expected annualized rate of earnings exceeded $45,000 per year.

In addition, if an employer enters into a covenant not to compete or covenant not to solicit with an employee, the Act sets forth certain employee notification requirements. Before the employee enters into an agreement containing either or both covenants, the employer must advise the employee in writing to consult with an attorney. The employer must also provide the employee with a copy of the covenant(s) at least 14 days prior to the start of employment or, if the employee has already started employment, the employer must provide the employee with at least 14 days to review the covenant(s). However, the employee can voluntarily elect to sign the covenant(s) before the expiration of the 14-day period.

Finally, the Act provides that the covenant not to compete and covenant not to solicit are illegal and void unless:

  • Adequate consideration is given to the employee;
  • The restrictive covenant is ancillary to a valid employment relationship;
  • The restrictions in the covenant are no greater than necessary to protect the legitimate business interests of the employer;
  • The restrictive covenant does not impose an undue hardship on the employee; and
  • The restrictive covenant is not injurious to the public.

Of the points above, maybe the most important is whether the restrictions contained in the covenants are no greater than necessary to protect the legitimate business interests of the employer. The Act provides that the factors to be considered in this analysis include the following:

  • The employee’s exposure to the employer’s customer relationships or other employees and the near permanence of the relationships the employer has with its customers.
  • The employee’s acquisition, use, or knowledge of confidential information through the employee’s employment.
  • The time, place and scope of activity restrictions.

In light of the Act and its codification of Illinois case law that has developed around the reasonableness of restrictive covenants, employers should pay special attention when using restrictive covenants. The Act is clear that each restrictive covenant must be evaluated on the facts of each individual case and that identical restrictive covenants might be reasonable and valid under one set of circumstances, but unreasonable and invalid under another set of circumstances. However, restrictive covenants are still alive and well in Illinois and are a valuable tool in a business owner’s toolbox to protect their competitive edge when drafted appropriately.  

The Illinois House and Senate have agreed on a version of the Illinois Freedom to Work Act, which is waiting for Governor Pritzker to sign into law. The Act puts restrictions on which employees can be subject to covenants not to compete and covenants not to solicit.

Under the Act, an employer cannot enter into a covenant not to compete with an employee unless that employee’s actual or expected earnings exceed a certain level. Initially, the employee’s annualized rate of earnings must exceed $75,000 per year. However, that amount increases to $80,000 on January 1, 2027, to $85,000 on January 1, 2032, and to $90,000 on January 1, 2037.

Similarly, an employer cannot enter into a covenant not to solicit with an employee unless that employee’s actual or expected annualized rate of earnings exceeds $45,000 per year. That amount increases to $47,500 on January 1, 2027, to $50,000 on January 1, 2032, and to $52,500 on January 1, 2037.

With regard to severance agreements, the Act prohibits an employer from entering into a covenant not to compete or covenant not to solicit with an employee who is terminated, furloughed or laid off as a result of business circumstances or governmental orders related to or similar to the COVID-19 pandemic. However, this prohibition is waived if the employer pays the employee compensation that is equivalent to the employee’s base salary at the time of separation for the period of enforcement minus any compensation the employee earns from subsequent employment during the same period.

If an employee is covered by a collective bargaining agreement under the Illinois Public Labor Relations Act or the Illinois Labor Relations Act, a covenant not to compete is void and illegal. Similarly, a covenant not to compete is void if the individual is employed in construction, unless that person primarily performs management, engineering, architectural, design or sales functions or are shareholders, partners or owners.

In order for a covenant not to compete and covenant not to solicit to be valid, the employer cannot just provide the employee with an agreement to sign that contains the restriction. Employers will have to: (1) advise the employee in writing to consult with an attorney before entering into any agreement containing a restrictive covenant; and (2) the employer must provide the employee with a copy of the restrictive covenant at least 14 days before the commencement of the employee’s employment.

The Act also allows the employee to recover attorney’s fees in any civil action or arbitration that is filed by an employer if the employee is the prevailing party. In addition, if the Attorney General of Illinois believes that a person or employer is engaged in a pattern and practice prohibited by the Act, the Attorney General may initiate or intervene in a civil action to obtain appropriate relief.

The Act also codified what has been set forth in Illinois case law regarding restrictive covenants. While traditionally Illinois courts have had the ability to rewrite an overly broad restrictive covenant, the Act recognizes that a court may choose not to rewrite an overly broad restriction. The Act suggests that a court consider the following factors before deciding whether to rewrite an overly broad covenant: (1) the fairness of the restriction as originally written, (2) whether the original restriction reflects a good-faith effort to protect a legitimate business interest of the employer, (3) the extent of the reformation and (4) whether the parties included a clause authorizing modifications to their agreement. In addition, the Act provides guidance on the factors to consider in determining an employer’s legitimate business and what constitutes adequate consideration to support a restrictive covenant.

Importantly, the Act does not become effective until January 1, 2022. As a result, employers have some time to think about how the Act will affect their business starting in 2022 and will have some time to enter into restrictive covenants with employees before 2022 that will be prohibited under the Act. I will write more about that in a future post.

If you have questions or would like to discuss how the Act will affect your business, please contact Thad Felton at (312) 345-5023 or

A new Ordinance in the city of Chicago will prohibit Chicago employers from firing or disciplining workers who leave work to get a COVID-19 vaccine during the workers’ normally scheduled work hours. The Chicago City Council unanimously approved the Ordinance on April 21, 2021, and the Ordinance goes into effect immediately.

Who does this affect?

Essentially, the Ordinance applies to all employers and workers in the city of Chicago, including non-employees who are independent contractors and performing services for a company in Chicago. Under the Ordinance, an “employer” means “any natural individual, firm, trust, partnership, association, joint venture, corporation or other legal entity who engages the services of at least one individual for payment.”  The Ordinance defines “worker” as “an individual that performs work for an Employer, including as an employee or as an independent contractor.”

What are the new rules?

Under the Ordinance, regardless of whether the COVID-19 vaccine is voluntarily sought or required by the employer, an employer cannot require that the worker get the vaccine only during the worker’s non-scheduled work hours.  And, if a worker does take time off during the worker’s normally scheduled work hours to get the COVID-19 vaccine, an employer cannot take any adverse action (e.g. discipline or terminate) against a worker for doing so.

Under the Ordinance, if a worker has company-provided paid sick leave and/or other company-provided paid time off accrued or otherwise available, and the worker specifically requests to use that time to get the vaccine, the employer must allow the worker to use the paid leave for that purpose.  

However, if the employer requires that workers get the COVID-19 vaccine, the employer must pay workers for the time, up to four hours per dose, it takes the worker to get the vaccine, at the worker’s regular rate of pay, but only if the vaccine appointment is during the individual’s normally scheduled work hours.  And, if the employer does mandate that workers get the COVID-19 vaccine, the employer cannot require that workers use company-provided paid time off and/or paid sick leave (e.g. under the Chicago Paid Sick Leave Ordinance) for the time off needed to get the vaccine.

An employer that takes an adverse action, such as discipline or termination, against a worker who leaves work during the employee’s normally scheduled work hours to get the vaccine will be deemed to have engaged in retaliation against the worker. It is unclear at this time what, if any, advance notice the worker must provide the employer.

What is the penalty to employers for violation?

An employer who violates the Ordinance is liable for a fine between $1,000 and $5,000 per offense. The Chicago Commissioner of Business Affairs and Consumer Protection or the Director of Labor Standards are vested with authority to take action against the employer by instituting an action in administrative hearings or requesting Chicago Corporation Counsel to take action in court against the employer. In addition to the fine, if the employer fired the worker, the worker is entitled to reinstatement to the same or an equivalent position, damages equal to three times the amount of wages lost, as well as any actual damages incurred, and costs and attorneys’ fees.

If you are an employer and have questions about how these changes affect you, please contact an attorney in Greensfelder’s Employment & Labor Practice Group.

What constitutes “solicitation” in the context of a non-solicitation provision? A recent decision from the U.S. District Court for Central District of Illinois attempted to shed some light on that question.

In this case, a dermatologist, with no patients, joined the plaintiff’s dermatology practice. After approximately nine years, the dermatologist left the practice to establish his own dermatology practice. To get patients, the dermatologist sent a bulk mail solicitation to 52,000 individuals, targeted by ZIP code and addressed to “postal customer,” that informed the recipient of his new dermatology practice. After the bulk mailing had been sent, 71 patients from the plaintiff’s dermatology practice requested that their medical records be transferred to the dermatologist’s new practice.

The court found that the dermatologist’s bulk mailing was not a solicitation. The court focused on the fact that whether particular client contact constitutes a solicitation depends on the method employed and the intent of the solicitor to target a specific client in need of his or her services. Direct solicitation, as opposed to a general advertisement, suggests a private communication directed at a person or persons, known by the person doing the solicitation to have an immediate or potential need for the services. Conversely, a general advertisement does not constitute solicitation because solicitation implies a personal petition addressed to a particular individual to do a particular thing.

In this case, there was no evidence that the dermatologist had his former employer’s patient address list or that the bulk mailing was specifically targeted, as it was sent to “postal customers” within certain ZIP codes. The court recognized that while the bulk mailing may be more targeted than a general newspaper or radio advertisement, it was still not a “personal petition to a particular individual” to sign up with the dermatologist’s new company and it was not a private communication directed at a person or category of persons known by the dermatologist to have an immediate need for his services.  

The case referred to above is Christie Clinic, LLC v. Jeremy Youse, M.D., et al., 2021 WL 1095332 (C.D. Ill. 2021).

On March 23, 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 1480, the Employee Background Fairness Act. This impacts certain Illinois employers because it imposes new reporting and registration requirements concerning employee demographics and pay under the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA), and creates new whistleblower anti-retaliation protections under the IEPA. The amendments take effect immediately.

The Illinois Business Corporation Act

SB 1480 amends the IBCA to impose new requirements for domestic and foreign corporations that are organized under Illinois law and are required to file an Employer Information Report EEO-1 (EEO-1) with the Equal Employment Opportunity Commission (EEOC).

The EEO-1 is a report filed with the EEOC and requires that employers report on the racial/ethnic and gender composition of their workforce by specific job categories. All employers that have 100 or more employees are required to file an EEO-1 report annually with EEOC, or if they are covered by Title VII of the Civil Rights Act (i.e. 15 or more employees) and have fewer than 100 employees but are owned by or affiliated with another company and together they have 100 or more employees. Lower thresholds apply to federal contractors. Federal contractors must file EEO-1 repots if they have:

  1. 50 or more employees; and
  2. are prime or first-tier contractors (which means they contract directly with the federal government); and
  3. have a contract, subcontract, or purchase order amounting to $50,000 or more; or
  4. serve as a depository of government funds in any amount, or are a financial institution that is an issuing and paying agent for U.S. savings bonds and notes.

Beginning January 1, 2023, all such applicable employers must include in their annual reports to the state of Illinois information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1 report (i.e. gender, race, and ethnicity of the corporation’s employees). The Illinois Secretary of State will then publish the gender, race, and ethnicity data of each corporation’s employees on the Secretary of State’s website.

The Illinois Equal Pay Act

SB 1480 amends the IEPA to require private businesses with more than 100 employees in the state of Illinois to obtain an “equal pay registration certificate.” Existing businesses must obtain certificates within three years after the effective date of SB 1480 (i.e. March 23, 2024), while new businesses must obtain certificates within three years after commencing operations. Recertification is required every two years thereafter.

To apply for the equal pay registration certificate, the applicable business must pay a $150 filing fee, submit an equal pay compliance statement to the director of the Illinois Department of Labor, submit a copy of the employer’s most recent EEO-1 report (if subject to EEO-1 reporting requirements) for each county in which the business has a facility or employees, and provide the total wages (as defined by Section 2 of the Illinois Wage Payment and Collection Act) paid to each employee during the prior calendar year separated by gender, race, and ethnicity. The director will issue the equal pay registration certificate to a business that submits a statement signed by a corporate officer, legal counsel or authorized agent of the business certifying that:

  1. The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the IHRA, the Equal Wage Act and the IEPA;
  2. The average compensation for its female and minority employee is not consistently below the average compensation for its male and non-minority employees within each of the major job categories in the employer’s EEO-1 report, taking into account factors such as length of service, requirements of specific jobs, experience, skill set, effort, responsibility, working conditions of the job, or other mitigating factors;
  3. The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  4. Wage and benefit disparities are corrected when identified to ensure compliance with the acts referenced in subparagraphs (a) and with subparagraph (b) above; and
  5. Wages and benefits are evaluated to ensure compliance with the acts referenced in subparagraphs (a) and with subparagraph (b) above.

The employer must also indicate on its equal pay registration certificate whether, in setting compensation and benefits, the employer uses:

  1. a market pricing approach;
  2. state prevailing wage or union contract requirements;
  3. a performance pay system;
  4. an internal analysis; or
  5. an alternative approach to determine what level of wages and benefits to pay its employees and it must describe this approach.

An employer who does not obtain an equal pay registration certificate or whose certificate is suspended or revoked after an IDOL investigation is subject to a mandatory civil penalty equal to 1 percent of “gross profits.” And, even if the IDOL issues a registration certificate to the employer, this does not constitute a defense against any IEPA violation found by the IDOL, or a basis to mitigate damages.

Whistleblower Anti-Retaliation Protections Under the IEPA

SB1480 also amends the IEPA to prohibit a business from taking any “retaliatory action” against an employee based on certain protected conduct. “Retaliatory action” means the reprimand, discharge, suspension, demotion, denial of a promotion or transfer, or change in the terms and conditions of employment of any employee of a business taken in retaliation for the employee’s involvement in the following protected activity:

  1. Discloses or threatens to disclose to a supervisor or to a public body an activity, inaction, policy or practice implemented by the business that the employee reasonably believes is in violation of a law, rule, or regulation;
  2. Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule or regulation by a nursing home administrator; or
  3. Assists or participates in a proceeding to enforce the provisions of the IEPA.

In addition to having to engage in protected activity, an employee claiming retaliation must also establish that the alleged protected activity was a “contributing factor” in the alleged retaliatory action. The employer has a defense to any such claim if it demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action even if the employee did not engage in the alleged protected activity. A prevailing employee may be awarded reinstatement, double back-pay with interest and reasonable costs and attorneys’ fees.

If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.

On March 23, 2021, Illinois Gov. J.B. Pritzker signed into law Senate Bill 1480, the Employee Background Fairness Act. This impacts Illinois employers because it imposes new obligations under the Illinois Human Rights Act (IHRA) on the way they can use criminal convictions to assess employment eligibility for applicants and current employees. It also imposes new reporting and registration requirements concerning employee demographics under the Illinois Business Corporation Act (IBCA) and the Illinois Equal Pay Act (IEPA) and creates new whistleblower anti-retaliation protections under the IEPA.

The amendments take effect immediately. This blog post will focus on the amendments to the IHRA, and a subsequent blog post will focus on the amendment to the IBCA and the IEPA.

IHRA Amendments

The IHRA is amended to make it a civil rights violation for an employer, employment agency or labor organization (collectively “employer”) to use a conviction record as a basis to refuse to hire, to segregate or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment, subject to the exception below. “Conviction record” is defined as “information indicating that a person has been convicted of a felony, misdemeanor, or other criminal offence, placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority.”  

An employer is permitted to deny employment or take an adverse action based on an individual’s conviction record if there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. The IHRA defines “substantial relationship” to mean “a consideration of whether the employment positon offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in position sought or held.”

To determine whether a “substantial relationship” exists, the amendments to the IHRA require employers to consider the following factors in evaluating the “substantial relationship” or risk to property or safety factors noted above:

  1. the length of time since the conviction;
  2. the number of convictions that appear on the conviction 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 employee at the time of the conviction; and
  6. evidence of rehabilitation efforts.

The amendments to the IHRA require employers to engage in an “interactive assessment” for disqualifying an applicant or employee. Specifically, the IHRA provides that after considering the above factors, if the employer initially believes that the individual’s conviction record disqualifies the person from the position sought or currently held, the employer is required to notify the individual of this preliminary decision in writing.

The written notification must contain:

  1. notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer’s reasoning for the disqualification;
  2. a copy of the conviction history report; if any; and
  3. an explanation of the employee’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final.

The notice must also inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification or evidence of mitigation, such as rehabilitation.

Before the employer can render a final decision, it must give the individual five business days from the date the employee receives the required written notification to respond. While the amendments do not, however, define or give examples of what “evidence” the employer is required to consider and/or accept, the amendments do provide that the employer “shall consider information submitted by the employee before making a final decision.” If an employer makes a final decision to disqualify or take an adverse action solely or in part because of the individual’s conviction record, the employer is required to notify the individual in writing of the following:

  1. notice of the disqualifying conviction or conviction(s) that are the basis for the final decision and the employer’s reasoning of the disqualification;
  2. any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
  3. the right to file a charge with the Illinois Department of Human Rights.

Notably, an employer who uses a third-party screening company to obtain information about an individual’s credit history, criminal background, references, or other personal information must also follow the procedures set out in the Fair Credit Reporting Act (FCRA). The requirements under FCRA are in addition to what is now required under the IHRA should an employer seek to use an individual’s conviction records as a basis for disqualification.

Because the amendments to the IHRA described above go into effect immediately, Illinois employers currently onboarding applicants who may have criminal convictions that could disqualify, or those that learn/know of criminal convictions that the employer may seek to use as a basis to discipline and/or terminate, must quickly familiarize themselves with the new obligations under the IHRA to avoid a charge of discrimination.

If you have questions about how these changes affect you, please contact an attorney in our Employment & Labor Practice Group.