Individualized Assessment: Making hiring decisions when reviewing adverse information

As more states pass fair hiring laws encouraging you to assess the individual circumstances of each candidate’s background check, Checkr helps you keep your hiring process fair and compliant through individualized assessment tools.

What is individualized assessment, and why is it important?

Individualized Assessment refers to how you review criminal records on a pre-employment background check. Rather than focus simply on the name of an identified criminal offense, individualized assessment means that you take into account the specific circumstances of the candidate and the crime(s) to make a fairer and more job related determination. All of this happens before you initiate Adverse Action against a candidate.

Unlike the Adverse Action process, which is required under the Fair Credit Reporting Act (FCRA), your Individualized Assessment responsibilities stem from federal, state, and municipal fair hiring laws. 

In 2012, the Equal Employment Opportunity Commission (EEOC), under title VII of the Civil Rights Act of 1964, issued guidelines advising employers to consider the specifics of each candidate who may be denied employment based on a background check.

Here’s how the EEOC defines Individualized Assessment:

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual's additional information shows that the policy as applied is not job related and consistent with business necessity.

The EEOC specifically mentions three criteria to consider when reviewing criminal records, known as the "nature/time/nature" test:

• The nature and gravity of the offense
• The time that has passed since the offense, conduct, and/or completion of sentence
• The nature of the job held or sought

In other words: “How severe was the offense? How much time has passed since the offense? How relevant is the offense to the job?”

The EEOC encourages you to consider other factors, such as:

• The facts or circumstances surrounding the offense or conduct.
• The number of offenses for which the individual was convicted.
• The candidate's age at the time of conviction, or release from prison.
• Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.
• The length and consistency of employment history before and after the offense or conduct.
• Rehabilitation efforts, such as education or training.
• Employment or character references and any other information regarding fitness for the particular position.
• Whether the individual is bonded under a federal, state, or local bonding program.

Also note the disposition of the records as you review them, because even dismissed records can still be reported in most states.

No individualized assessment is needed when there is a “demonstrably tight nexus” between the job duties and responsibilities and the offense or conduct. This occurs in specific and limited situations, for example:

• A recently convicted sexual predator applying to work supervising children at a day care.
• A candidate with recent convictions for identity theft applying to work in a position handling sensitive personal financial information like Social Security and credit card numbers.

Create an individualized assessment process

The best practice is to create and document a fair individualized assessment process that goes hand-in-hand with your adverse action process. You should then distribute and train your adjudicators and hiring managers on these processes. In general, these processes may govern:

• Which offenses wouldn’t adversely affect an employment decision because they are minor, irrelevant, etc. (our Positive Adjudication Matrix helps you filter these automatically).
• Which factors to examine on a criminal record during an individualized assessment.
• When, if at all, to ask about criminal history (to comply with “Ban the Box” laws).
• How to reach out to candidates to gain additional information or context on a criminal record.
• How to account for severity, age, relevance, and disposition during adjudication.
• How to document individualized assessments for candidates with whom you will initiate an Adverse Action process.

For example, you may create a worksheet similar to the following:

"Show your work” laws and ordinances

Taking the EEOC guidance a step further, some municipalities (for example, the cities of New York and Los Angeles) specifically require that employers not only conduct individualized assessments, but also “show their work” to candidates. These jurisdictions require that you send a written analysis to the candidate explaining why the criminal record disqualifies them from employment in a given position.

For example, in July of 2017, the City of Los Angeles began enforcement of the Fair Chance Initiative for Hiring Ordinance. In keeping with a general trend towards increased transparency in the hiring process, the Ordinance requires employers to provide their written individualized assessment with the pre-adverse action notice (i.e. “show your work”). New York City implemented a similar requirement in August 2017.

Individualized assessment in the Checkr platform

To assist you in conducting compliant individualized assessments, Checkr provides two useful features.

First, Checkr’s Positive Adjudication Matrix allows you to automatically filter out minor or irrelevant offenses that wouldn’t disqualify a candidate, so that those reports will clear without you needing to conduct individualized assessment. Not only will this result in fairer and more consistent hiring practices, but it will also free up your employees’ time from having to review these reports.

Checkr also allows you to add your written individualized assessment directly into the adverse action notice.

Specifically, if you’re hiring candidates in locations with “show your work” laws or ordinances, such as the cities of Los Angeles and New York, or the state of Illinois, Checkr will prompt you to use our Individualized Assessment tool during the adverse action process.

We use the following logic to determine whether to activate the Individualized Assessment Tool:

• If your candidate's Work or Home ZIP code is in New York City or Los Angeles, we will activate the assessment form for that candidate.
• If your candidate is in California, Illinois, or New York Geo, we will activate the assessment form for that candidate.
• By request, we can activate the assessment form for all candidates. Please contact Checkr Customer Support.

Provide your rationale in the Initial Assessment field.

For candidates in the cities of New York or Los Angeles, use the Upload document section to download the New York or Los Angeles Individualized Assessment forms, fill in the details, and then upload directly into the form. Whatever you enter or upload will also be sent to the candidate with the Pre-Adverse Action notice.

When you preview the Pre-Adverse Notice, you’ll see the individualized assessment show up as well. In the screenshot below, the text inside the red box (“Company’s Initial Assessment”) comes directly from the text you entered on the previous screen within the “Initial Assessment” field.

The candidate has 7 days by default to provide an explanation or to dispute the accuracy of the report by visiting the Candidate Portal. Based on the information that the candidate provides, conduct a reassessment or consider the additional information in the Reassessment field.

If, based on this reassessment, you decide that you would like to hire the candidate, you can cancel the Pre-Adverse Action notice at this point.