There is a strong case for arguing that the Job Opportunities for Qualified Applicants Act exempts financial institutions, but there are counterarguments as well.

Section 15(b)(1) of the Act includes an exemption for employers that “are required to exclude applicants with certain criminal convictions from employment due to federal or State law . . . .” 820 ILCS 75/15(b)(1). Read broadly, this exemption applies to financial institutions.

The strongest argument for the exemption applying to financial institutions is the Federal Depository Institution Act’s prohibition on hiring (or otherwise involving) an individual who has been convicted of any criminal offense involving dishonesty, breach of trust, or money laundering, or an individual who has agreed to enter into a pretrial diversion or similar program in connection with such an offense. 12 USC 1829(a). The Illinois Banking Act, Savings Bank Act, and Corporate Fiduciary Act impose similar restrictions. 205 ILCS 5/16.5205 ILCS 205/11008(b)205 ILCS 620/2-13.

However, none of these laws completely prohibits a bank from hiring an individual with a criminal conviction. A bank can hire such individuals with the consent of the FDIC (and the IDFPR, when applicable), but these exceptions are extremely rare except for the most de minimus of offenses. Perhaps more importantly, none of these laws prevent a financial institution from waiting until an applicant has been determined to be qualified for a position and notified of an interview before conducting its criminal background check on the applicant.

Notwithstanding these counterarguments, it seems illogical to require a financial institution to delay the criminal background check when discovering a covered offense would disqualify the applicant irrespective of whether an interview takes place. Consequently, we believe the more defensible reading of the exception in Section 15(b)(1) is a literal interpretation of its plain language, the result being that a financial institution is covered by the exception at the outset of the application process in cases where it would be “required to exclude applicants with certain criminal convictions . . . .”

We should note that the Act provides for escalating penalties of up to a $1,500 per violation for third and subsequent violations, 820 ILCS 75/20, and you may wish to consult with your bank’s legal counsel before relying on this reasoning. Our view does not constitute legal advice; moreover, we expect the Illinois Department of Labor to publish rules on the Act at some point in 2015 that may or may not address this question.