Q. As I was reading the newspaper recently, I saw one of my employees featured in the arrest column. She had been arrested the night before for driving under the influence. Committed to maintaining a law-abiding workforce, I would like to terminate this employee. Can I?
A. No, not based on her arrest. Under Illinois law, employers that have 15 or more employees are prohibited from inquiring into or using the fact of an arrest (or criminal history record information ordered expunged, sealed or impounded) as a basis to discharge, discipline, refuse to hire and so forth.
This restriction doesn’t apply to employers that are legally required to conduct criminal background checks for employment in particular occupations or industries.
However, the fact of an arrest does not prohibit an employer from obtaining or using other information that indicates that a person actually engaged in the conduct for which he or she was arrested. The intent of the Illinois Legislature was to prevent an inquiry into mere charges or allegations of criminal behavior.
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