Are you ready for this?
I have discussed, at length, on this page, the criminal background check rules contained in the Cook County Just Housing Amendment to the Cook County Human Rights Ordinance and why they are flawed and fairly ridiculous. Cook County has passed their final set of rules and they will go into effect at midnight on December 31, 2019. That means that landlords throughout Cook County need to be aware of and in compliance with these rules beginning then if they want to do a criminal background check.
There is still serious confusion in the landlord-tenant community regarding the implementation of these rules. Many think that the rules are inapplicable if a landlord does not conduct a criminal background check but others are quick to point out that the law does not exempt any landlords from compliance.
I have reached out to the Director of the county’s Human Rights Department and to their lead attorney for clarity on the issue but neither has responded. Until then, the most prudent approach a Cook County landlord who is NOT conducting criminal background checks might take is to attempt compliance in the initial notice stages of the rules. Hopefully, there will be clarity on these issues as things shake out in the next few months, but until then, it might not be worth it to be a test case!
The rules, as enacted, have a notice requirement and a “two-step” approval procedure.
Notice
For the notice component, Section 730.100 of the rules provides that “before a landlord can accept any application fee…” (there is no mention in the rules as to what happens if there is no application fee collected but landlords should probably comply anyway) “…a housing provider must disclose to the applicant the following information:”
1. The tenant selection criteria which describes how an applicant will be evaluated to determine whether to rent or lease to the applicant;
2. The applicant’s right to provide evidence demonstrating inaccuracies within the applicant’s conviction history or evidence of rehabilitation and other mitigating factors
3. A copy of “Part 700 of the Commission’s procedural rules or a link to the Commission’s website,with the address and phone number of the Commission.
So the process begins with providing tenant selection criteria. What is that? The rules define it as “the criteria, standards and/or policies used to evaluate whether an applicant qualifies for admission to occupancy or continued residency. The criteria, standards and/or policies concerning the applicant’s conviction history from the previous three (3) years shall apply only after a housing applicant has been pre-qualified. The criteria must explain how applicants’ criminal conviction history from the previous three (3) years will be evaluated to determine whether their conviction history poses a demonstrable risk to personal safety or property.”
For reference, a copy of Part 700 of the Commission’s procedural rules can be found at this website address: https://www.cookcountyil.gov/service/human-rights-ordinances-and-regulations
So here we get our first bit of the rules. A landlord can only go back three years in a tenant’s criminal conviction past. The screening criteria have to indicate what criteria, standards, and policies are used to evaluate the prospective tenant. If a criminal background check is part of those criteria, the landlord must explain how the conviction history will be evaluated to determine if the conviction history indicates a “demonstrable risk” to personal safety or property. Remember, only convictions for crimes that can be shown to pose a risk to personal safety or property can be used to deny an applicant. A landlord who is not screening might do well to still provide the written screening criteria to their prospective tenants.
Step One – Pre-Qualification
The rules provide that “No person shall inquire about, consider or require disclosure of criminal conviction history before the prequalification process is complete, and the housing provider has determined the applicant has satisfied all other application criteria for housing or continued occupancy.”
This means that before a landlord (or the landlord’s agent) has any right to look at criminal background, the tenant must be fully approved or denied based on the tenant screening criteria absent the criminal conviction history. In addition, neither a landlord nor a landlord’s agent shall inquire about, consider, or require the disclosure of an applicant’s criminal conviction history before the prequalification process is complete and the landlord has determined that the applicant has satisfied all other application criteria for housing or a renewal of a lease. This means any questions about criminal convictions or arrests must be removed from a landlord’s application. It also means a landlord cannot do an internet search of court records looking into a tenant’s criminal background. A landlord can do all of the other things (non-criminal background related) the landlord normally does such as checking credit, doing a past eviction check (evictions are civil, not criminal, matters), verifying income, etc.).
Of serious concern to Cook County landlords is that many tenant screening services are not set up to separate a criminal background check from the other checks that they perform. This is especially true of aggregator services that review a tenant’s background and then provide an overall suitability score for the tenant. Cook County landlords will need to find services that do not make an initial criminal background check and that can provide one after prequalification is complete.
Once the landlord has completed the prequalification, the landlord must provide the applicant with a formal notice of the results of the prequalification (approved pending criminal background check or denied). This notice must be provided before any criminal background check can be performed.
Step Two – Criminal Background Check
After a landlord sends the notice of pre-qualification, the landlord may conduct a criminal background check on the prequalified applicant. However, a landlord MAY NOT CONSIDER any information related to the criminal convictions that are more than 3 years old or any information regarding an individual’s (1) arrest, charge or citation record (without conviction); (2) participation in a diversion or deferral of judgment program; (3) record of an offense that has been sealed, expunged, or pardoned in accordance with applicable law; (4) or juvenile record; and conviction.
Only in the case of certain convictions, such as sex offender registrants, child sex offender registrants, and those with convictions that demonstrate a risk to personal safety and/or property of others, can a landlord reverse the application pre-qualification.
Within 5 days after obtaining a criminal background check, the landlord must deliver a copy of the background check to the applicant either (1) in person; (2) by certified mail; or by electronic communication like text or email. Once the landlord has provided the information to the applicant, the applicant will have 5 business days to dispute the accuracy or relevance of any information related to any criminal conviction in the prior 3 years. The final rules did provide that a landlord does NOT have to take the property off the market during these 5 days.
After the applicant has been given a period to dispute the accuracy or relevance of the criminal background check, the landlord may review the information. If the landlord considers any criminal conviction information (except for current sex offender or child sex offender registrants), the landlord will need to perform an “individualized assessment” before denying the applicant.
If a pre-qualified applicant has any criminal convictions in the 3 year window that might result in a denial, the landlord must first make an individualized assessment to determine whether the applicant’s criminal convictions from the last three 3 years poses a demonstrable risk. If the applicant’s criminal convictions pose a demonstrable risk, the housing provider may deny the application.
An individualized assessment means a process by which a person considers all factors relevant to an individual’s conviction history from the previous 3 years. Factors that may be considered in performing the Individualized Assessment include, but are not limited to:
(1) The nature and severity of the criminal offense and how recently it occurred;
(2) The nature of the sentencing;
(3) The number of the applicant’s criminal convictions;
(4) The length of time that has passed since the applicant’s most recent conviction;
(5) The age of the individual at the time the criminal offense occurred;
(6) Evidence of rehabilitation;
(7) The individual history as a tenant before and/or after the conviction;
(8) Whether the criminal convictions are related to or a product of the applicant’s disability; and
(9) If the applicant has a disability, whether any reasonable accommodation can be provided to ameliorate any purported demonstrable risk.
What is evidence of rehabilitation? Examples include, but are not limited to: satisfactory compliance with all sentencing terms and conditions; court-issued certificates of good conduct; employer recommendations; educational attainment or vocational or professional training since the conviction; completion or active participation in rehabilitative treatment; and letters of recommendation from those who have observed the individual since the conviction.
A landlord must either approve or deny an individual’s housing application within 3 business days of receipt of information from the applicant disputing or rebutting information contained in the background check. It will be a major process to make a denial. Any decision to deny a lease or a renewal based on criminal conviction history:
(A) must be in writing and must provide the applicant an explanation of why denial based on criminal conviction is necessary to protect against a demonstrable risk of harm to personal safety and/or property.
(B) The written denial must also contain a statement informing the housing applicant of their right to file a complaint with the Commission.
Keep in mind that the penalties for violating the ordinance could be severe. They would be the same as any other violation of the housing ordinance by the Human Rights Commission.
If you need to consult with an attorney about your leasing practices, please feel free to contact us to see if we are a match for an engagement.