In this series, we will explore some of the ways states vary from one another in their employment laws.

You have an employee who did not show up to work today and did not call in to report their absence. You hear other workers whispering about why the employee is missing. Then you open the newspaper and see that the employee has been arrested for what you believe is a terrible, unconscionable offense. Can you terminate the employee based on this arrest? If you're an Illinois employer, you likely should not.

Illinois is the unusual state that includes arrest record as a protected class under its anti-discrimination law, the Illinois Human Rights Act. It is unlawful for an employer to use an arrest record (defined as an arrest not leading to a conviction, a juvenile record, or a criminal history ordered expunged, sealed, or impounded) as the basis for an employee termination, a refusal to hire, or any other adverse employment action.  That means an employer cannot terminate an employee simply because they have been arrested, whether the criminal case is still pending or whether the arrest ultimately did not result in a conviction.

The law goes further still. Illinois employers are not even allowed to ask an employee or applicant about an arrest. In our hypothetical above, you could ask the employee whether they have engaged in the unlawful conduct of which they were accused, but you must take care not to reference the arrest as part of the inquiry.

Understandably, this process can be confusing for employers — as I previously discussed regarding conviction record protection in Illinois. If an employee is convicted, the employer MUST ask the employee questions about their conviction before taking an adverse employment action. It is odd that an employer must never ask about an arrest under any circumstances, but is required to ask about a conviction before terminating an employee based on that conviction.