Checking Workers' Comp history

DB

I was reading the Employment Law Letter for IL and nearly had a heartattack when it stated that the IL Workplace Privacy Act prevents an employer from inquiring into a job applicant's prior claims or benefits under the WC Act or Occupations Diseases Act. We always run a check on a potential employee's WC history after a conditional offer has been made (and accepted) and after they sign a release.

When I pulled up the actual law, it states that we can't ask the prospective employee or their former employers, however we get the information by sending a request for history directly to the IL Industrial Commission. The way the law is written, this seems to be ok. Any input or suggestions to relieve my pounding heart?

System

Thank you for your interesting question about the Illinois Right to Privacy in the Workplace Act. I have asked one of the editors of the Illinois Employment Law Letter to respond to your question.

Here is his response:

The Illinois Right to Privacy in the Workplace Act says that it is unlawful for any employer to ask any prospective employee, or the prospective employee's previous employer, whether the person has ever filed for Workers' Compensation benefits. In Illinois, prospective employee is defined as not only an individual applying for a job position, but also an individual to whom an offer of employment has been extended, but who has not yet begun working for the employer.
However, the law itself does not prohibit an employer from gaining the information from other sources, including the Illinois Industrial Commission itself. There is no case law or regulatory guidance on whether an inquiry directly to the Industrial Commission violates the law. However, I spoke with the Commission's legal department who stated that information regarding an individual's claim history is public information and readily obtainable from the Commission. Essentially, anyone, including an employer, can inquire into an individual's workers' compensation claim history, either by accessing the Commission's database at their office or by requesting such information from the Commission's claims department.
The bottom line is that an employer should never ask an applicant or an applicant's previous employers about the applicant's workers' compensation history. However, it appears that an employer is within its legal right to request such information from other sources, including the Illinois Industrial Commission. As a cautionary note, employers should be aware that the Illinois Department of Labor ("the IDOL") has yet to address the issue of whether an employer inquiry into an applicant's claim history to the Commission violates the Act. The IDOL's legal department has indicated that should the issue be raised in a complaint, it would investigate and determine the legality of the practice.

Steven L. Brenneman
Matkov, Salzman, Madoff & Gunn
55 E. Monroe Street, Suite 2900
Chicago, IL 60603
312.332.0777

Terri

Does anyone know if that's the same in the state of Maine?