Excerpted from Lexology by Amal Law Group
With unemployment skyrocketing at an unprecedented rate because of COVID-19, there is no doubt that many individuals with a criminal record will find their past resurfacing, if not haunting them, as they apply for new work. The good news is that legal tools are available to getting a job with a criminal record without becoming a potential liability to employers.
Employers are interested in criminal background checks for a variety of reasons. According to the EEOC, one survey of employers showed that 92% of those responding “subjected some or all of their job candidates to criminal background checks1.” The primary reasons for performing these checks include:
interest in thwarting theft and fraud;
concerns about workplace violence;
wanting to avoid potential liability for negligent hiring; and,
mandatory state or federal requirement2.
Knowing that a background check is inevitable, there are a number of tools in the legal war chest that applicants and employers alike can use to make rehiring a win-win situation.
Expunging/Sealing Criminal Records: Start Now
The best tool available for Illinois job applicants with a criminal past is clearing their background from the official record3. In doing so, when a background check is done, the report will show that the applicant has no criminal history. An added bonus is that Illinois law specifically prohibits employers from asking if an applicant has had criminal records expunged or sealed. Thus, once the record is cleared, it won’t resurface and harm the prospect of getting a job.
The advantage of beginning the process now is that when looking for work, employers are more inclined to hire someone who is in the process of having their record cleared than otherwise. For most Illinois counties the process to expunge/seal criminal records takes between six to nine months to complete. The exception is the First District of Cook County, which encompasses Chicago. First District cases take nearly one year to complete. With COVID-19 slowing the judiciary and the recent cannabis law automatically expunging certain misdemeanor marijuana convictions, these time frames are expected to lengthen.
Between the two, expunging is the better relief. Expungement in Illinois means the record that law enforcement holds is physically destroyed and the court’s record of the case gets impounded. Expungement is only available to non-convictions and certain misdemeanor cannabis convictions. Sealed records are not visible to the general public, but are visible to law enforcement. Also, sealed felony convictions are visible to certain employers; sealed misdemeanor convictions are not visible to employers. To learn more, read “Expunging and Sealing: Who Sees What?”
The benefit to the employer is that a background check showing no criminal record absolves the employer from liability should this become relevant in the future. It also allows the employer to evaluate the applicant for who he/she is today and not based on a poor choice from the applicant’s past. The benefit to the applicant is that the law allows that person to answer, “No,” if asked whether they have an arrest or conviction. They can answer this with the assurance that the background check will confirm their answer.
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