The Individualized Assessment: How to Fairly Evaluate Criminal History in Hiring Decisions

A criminal record doesn’t tell the whole story about an applicant. While background checks provide valuable information to help employers make informed hiring decisions, a past conviction should not automatically disqualify a candidate from consideration, particularly as an increasing number of states have enacted fair chance laws that require employers to conduct additional assessments before deciding not to hire individuals with a criminal history.

An individualized assessment allows employers to look beyond the record itself and evaluate whether a particular offense is relevant to the position. By considering the nature of a conviction, the time that has passed, and the responsibilities of the job, employers can make more thoughtful, consistent, and job-related hiring decisions.

An individualized assessment is a case-by-case review of a candidate’s criminal history before making an employment decision based on that information.

Rather than applying a blanket policy that excludes anyone with a criminal record, employers evaluate the specific circumstances of a candidate’s criminal history and its potential relationship to the position.

Validity has previously highlighted the Equal Employment Opportunity Commission’s (EEOC) guidance on considering arrest and conviction records in employment decisions. That guidance emphasized avoiding automatic exclusions and evaluating criminal history based on job-relatedness and consistency with business necessity.

The goal is to determine whether a particular conviction has a meaningful connection to the duties and responsibilities of the position.

When evaluating whether criminal history is relevant to a hiring decision, employers should consider several factors. Validity’s compliance resources identify three particularly important considerations:

1. Nature and Gravity of the Offense

Consider the type and severity of the offense. Not all convictions carry the same implications, and the nature of an offense should be evaluated in relation to the responsibilities of the position.

For example, an offense involving financial misconduct may warrant different consideration for a position involving financial responsibilities than for a role with unrelated duties.

2. Time That Has Passed Since the Offense

The amount of time that has passed since an offense occurred is another important consideration.

A conviction from many years ago may have a different bearing on a candidate’s current qualifications than a more recent offense. Employers should consider the age of the conviction and whether it remains relevant to the position.

3. Nature of the Job Held or Sought

The responsibilities of the position should play an important role in the evaluation.

Consider the specific duties, level of responsibility, and potential risks associated with the job. An offense should not automatically disqualify a candidate simply because it appears on a background check. Employers should evaluate whether the conviction has a legitimate connection to the position.

In addition to these three factors, Validity’s compliance updates have highlighted other considerations that may be relevant when conducting an individualized assessment.

Depending on applicable requirements, employers may need to consider:

• The number and frequency of convictions.
• The circumstances surrounding the offense.
• The candidate’s age at the time of the offense.
• Evidence of rehabilitation efforts.
• The relationship between the offense and the safety or security of others.

Looking at these factors together helps employers avoid making decisions based on a single piece of information without taking the broader context into account.

An important part of a fair assessment is allowing candidates the opportunity to address information that may influence an employment decision.

Background reports can contain information a candidate may wish to challenge or explain. They may also have additional information regarding rehabilitation or mitigating circumstances that could help an employer better understand their history.

When an employer is considering adverse action based on information in a third-party background report, the Fair Credit Reporting Act (FCRA) establishes specific notification requirements.

Generally, the process includes:

1. Pre-Adverse Action Notice: Before taking adverse action, the employer must provide the candidate with notice of the intended decision, a copy of the background check report, and a Summary of Your Rights Under the FCRA.
   
   

    

2. Opportunity to Review and Dispute: The applicant must be given an opportunity to review the report and dispute information with the background screening company that they believe is inaccurate or incomplete. Additionally, this opportunity allows the candidate to provide the employer with any additional information that may be pertinent to their evaluation for the job position (e.g., evidence of rehabilitation). This timeframe is commonly referred to as the waiting period. Although the FCRA does not specify what constitutes a reasonable waiting period, based on varying state requirements and Federal Trade Commission (FTC) guidance, Validity recommends 5-10 business days.
   
   

    

3. Final Adverse Action Notice: If the employer ultimately decides to proceed with the adverse action, a final notice must be provided with the required information about the consumer reporting agency.

Employers should also be aware that certain state and local laws establish additional requirements, including specific individualized assessment procedures and documentation obligations.

Consistency and documentation are crucial components of a compliant background screening program.

Employers should maintain clear records of how criminal history is evaluated and why particular information is considered relevant to a position. Documenting the individualized assessment helps establish a consistent process and provides a record of the factors considered when making an employment decision.

Hiring managers and others involved in the screening process should also understand the organization’s policies and applicable requirements. Routine training can help ensure criminal history information is evaluated appropriately and that decisions are not based on blanket exclusions.

Criminal background checks are a valuable tool for evaluating potential workplace risks, but the information they provide should be considered in context.

An individualized assessment encourages employers to look at the relationship between an offense, the candidate’s circumstances, and the position’s responsibilities before making a hiring decision.

By avoiding automatic exclusions, considering relevant factors, providing candidates an opportunity to respond, and documenting individualized assessments, employers can support a more consistent and compliant screening process.

At Validity Screening Solutions, we believe informed screening decisions start with reliable information and a commitment to compliance. Understanding how criminal history should be evaluated is an important part of building a background screening program that supports both organizational needs and fair hiring practices.

Legal Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. Federal, state, and local requirements may vary. Employers should consult qualified legal counsel regarding their specific compliance obligation