STAYING OUT OF COURT
New rules affect job application process, pregnant employees
By Jim Kendall
This column originally appeared in the July 7, 2014 Daily Herald
Legislation expected to be signed into law by Illinois Gov. Pat Quinn – perhaps already done as you read this – will change the way small businesses deal with job applicants and pregnant employees.
With Quinn’s signature, provisions of both laws will be effective January 1, 2015. It’s best to learn the details now.
* Dubbed Ban-the-Box, Illinois’ Job Opportunities for Qualified Applicants Act prohibits employers from asking a job applicant about possible criminal convictions before a formal job offer is extended. Generally, the “check here if you’ve ever been convicted” box on the job application must go.
Consequently, employment attorney Renée L. Koehler says, any job offer you extend should be conditional upon the applicant being able to pass a criminal background check. Even then, employers “must look to mitigating circumstances,” she adds.
Koehler is a partner in the law firm of Koehler & Passarelli LLC, Woodridge.
Mitigating circumstances could involve such issues as whether a conviction that turns up is related to the job you’re offering; how long ago the conviction was (seven to 10 years seems to be a touch point); and what the conviction was for, Koehler says.
As a practical matter, convictions that surface in a background check must be handled pretty much on a case-by-case basis.
Clearly, the provision “adds to the hiring process,” Koehler says.
Illinois-based employers with facilities in one of the four states– Hawaii, Massachusetts, Minnesota and Rhode Island – or 50 municipalities where Ban-the-Box provisions already exist likely are a step or two ahead. They already deal with additional hiring steps.
Management guidelines covering business-related convictions must be in place, for example, and enhanced training often is necessary for supervisors who have hiring authority in such high-turnover sectors as retail or delivery.
Assuming Quinn’s signature, the law affects companies with 15 or more employees.
* New pregnancy accommodation requirements, an amendment to the Illinois Human Rights Act, affect all employers: If your one employee is pregnant, you’ll have to make reasonable accommodations if she asks.
Accommodations might include longer and more frequent bathroom breaks; lighter duty; transfer to less physically demanding or less hazardous tasks; modified hours; and expanded seating, or rest, areas.
If hired, pregnant applicants must be afforded the same accommodations.
Koehler says that employee requests for accommodations typically must be supported by medical documentation – i.e., a note from the doctor.
Unless accommodations would place an undue hardship on the business, employers cannot counter a request for accommodations with an early leave of absence, Koehler says. Neither are employers required to create a new job for a pregnant employee.
The provisions of the amendment apply to job applicants, full-time employees, part-timers and probationary workers who are pregnant or returning to work after childbirth. HR posters must include the provisions; appropriate language will be available from the Illinois Department of Human Rights – and, presumably, from trade associations and other business organizations.
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