Faith’s Law: What Illinois employers should know

Illinois employers should take note of requirements that relate to employees who are applying for employment in schools, including contractors. The requirements affect even non-school employers whose ex-employees are applying for school-related jobs.

What is Faith’s Law?

Illinois passed Faith’s Law as two separate pieces of legislation. The first piece took effect on December 3, 2021, and defined “sexual misconduct” within the Illinois School Code. The second piece took effect on July 1, 2023, and focuses on the prevention of sexual misconduct by school employees, as well as employees of contractors who work for schools. Portions of the 2023 legislation apply to Illinois employers outside school settings.

Employer requirements

As it relates to employers, Faith’s Law requires schools and contractors providing workers at schools to complete an employment history review before allowing individuals to work at the school. The employment history review seeks information about past allegations of “sexual misconduct” for individuals hired to work at schools. Faith’s Law defines “sexual misconduct” as “any act, including but not limited to, any verbal, nonverbal, written, or electronic communications or physical activity, by an employee or agent of the school district, charter school or nonpublic school with direct contact with a student that is directed towards or with a student to establish a romantic or sexual relationship with the student.”  105 ILCS 5/22-85.5

For the employment history review, schools and school contractors first must require the applicant to complete a form called “Illinois State Board of Education Sexual Misconduct Disclosure Template for Applicant,” which requires the applicant to disclose the following:

• Whether the applicant was the subject of a past allegation of sexual misconduct.
• Whether the applicant’s previous employment ended due to a finding of sexual misconduct or while an investigation involving allegations of sexual misconduct was pending.
• Whether the applicant had a license or certificate (or an application for a license or certificate) suspended, surrendered, or revoked because of a finding of sexual misconduct or during an investigation involving allegations of sexual misconduct.

Schools and school contractors also must require applicants to complete a second form that authorizes each of their current, and certain former, employers to disclose the same information. This second form is called “Authorization for Release of Sexual Misconduct-Related Information and Current/Former Response Template.” Applicants must complete one of these “Authorization Forms” for every former employer that meets any one of the following criteria:

• A public or nonpublic elementary or secondary school.
• An employer that contracted with a public or non-public elementary or secondary school to provide services if, during the applicant’s employment, the applicant engaged in or had the possibility to engage in, the care, supervision, guidance, control of, or routine interaction with, children or students.
• Any other employer for which the applicant engaged in or had the possibility of engaging in the care, supervision, guidance, control of, or routine interaction with, children or students.

The hiring schools and school contractors must then send the Authorization Forms to the applicant’s current and former employers, and those entities must complete and return the forms. The law has no time limit, so presumably the applicant would have to provide authorization forms for every past employer in the applicant’s entire working life, provided that the employer meets the criteria.

If a school contractor becomes aware of information that would disqualify an applicant from working at the school, such as a previous finding of sexual misconduct, the school contractor must notify the school. The school has the right to reject the applicant based on the information provided. The contractor must retain records documenting its employment history reviews for all relevant employees.

Responses to Authorization Forms

The requirements of Faith’s Law mean that Illinois employers – even if they are not schools or school contractors –  may receive Authorization Forms related to their current or former employees. Employers have 20 days from receipt of the Authorization Form to complete and return it. Employers are immune from criminal and civil liability for the disclosure of the information unless the information was knowingly false.

Illinois employers should timely respond to any Authorization Forms they receive related to their former employees. Failure to do so could jeopardize the former employee’s future employment opportunities and subject the employer to liability.

Faith’s Law contains a number of other requirements that apply only to schools.

If you have questions concerning whether your current employment practices, policies, and procedures comply with Faith’s Law, please contact any attorney in Constangy’s Chicago office.