Learn how to review unexpected background check results while remaining fair and compliant.
In an effort to widen candidate pools and keep up with changing worker expectations, companies are evolving their hiring processes to remove bias and build more representative workforces. More and more, hiring teams are welcoming candidates who have an arrest or conviction history, giving them a “fair chance” at employment.
When unexpected results are returned on a background check (such as an arrest or conviction record, for example), there is a process to escalate and adjudicate the candidate’s record while remaining fair and unbiased. This process is called an individualized assessment.
First, what is an individualized assessment?
An individualized assessment refers to how an employer reviews criminal records on a background check. Rather than taking a criminal offense at face value, the employer reviews the specific conviction along with circumstances around the reported offenses and compares it to the role’s requirements.
It’s important to note that individualized assessments should occur before and as part of the adverse action process. The difference between the two is that adverse action is required under the Fair Credit Reporting Act (FCRA), while individualized assessment responsibilities stem from state and municipal fair hiring laws. Be sure to consult with your legal counsel to understand the laws and regulations for individualized assessment in your jurisdiction.
Individualized assessments not only help employers make informed hiring decisions, but also support fair chance hiring. A study by Yale revealed the average employer who conducts background checks is 63% more likely to call back a candidate who does not have a criminal record. But, studies show that gainful employment reduces recidivism and fair background checks play a role in leveling the playing field for candidates while expanding the talent pool for employers. Additionally, research has shown that retention rates are higher among employees with a criminal record, saving employers considerable costs in turnover.
What are the Green Factors?
If a candidate’s background check reveals a criminal history, guidance from the Equal Employment Opportunity Commission (EEOC) recommends employers make hiring decisions based on the Green Factors, also called the “nature-time-nature” test, which considers:
- The nature and gravity of the offense
- The time elapsed since the offense
- The nature of the job being sought
The outcome of the nature-time-nature test is to determine if the offense and surrounding circumstances are so correlated as to negatively impact the candidate’s ability to perform the specific role. If the candidate’s past criminal history has no strong correlation to the role or organization, then the employer may consider moving forward in the hiring process. The test aims to remove bias in order to conduct a fair assessment of a candidate’s criminal record.
For example, if a candidate is applying to a job as a delivery driver, a recent DUI conviction may create a barrier to employment because the responsibilities of the job and the nature of the crime are too deeply correlated. However, if that same candidate applied instead for an administrative position where driving is not part of the role’s responsibilities, the conviction wouldn’t relate to the skills required for the role, so it may not hinder their eligibility for the job.
Individualized assessment best practices
There are many best practices to consider for a timely and fair evaluation of a candidate’s history. We encourage employers to work with their legal counsel to develop individual assessment practices in accordance with applicable laws and business needs.
- Develop a written policy that sets the baseline for how your company’s individualized assessment process will occur to ensure consistency across candidates.
- Assemble a panel of individuals from varying backgrounds and expertise areas to ensure you’re fairly assessing candidates without undue risk.
- Acknowledge and discuss any possibilities for unconscious biases or moral judgements in order to address them and focus on neutral conclusions from the nature-time-nature test.
- Consider any rehabilitation efforts by the candidate, including completed probation, participating in counseling or courses, or personal references.
- Provide the candidate with an opportunity to give context around the circumstances leading up to the conviction or dispute the charges if they are incorrect.
- Finalize your decision and if necessary, be able to “show your work” through the nature/time/nature test. Note that these assessments should remain confidential between the adjudicators or hiring managers. Some jurisdictions may require an employer to send a worksheet reflecting their individualized assessment process, so employers should consult their legal counsel regarding any specific requirements in jurisdictions in which they operate.
- If a candidate who underwent an assessment is hired, ensure their privacy is protected so they will not be subjected to othering, tokenization or undue lack of trust.
How Checkr supports fair hiring practices
Checkr’s Candidate Stories feature supports and simplifies individualized assessments. Employers are able to request more information directly from the candidate, giving them a voice to share additional context around their records, prior circumstances, while helping comply with Ban the Box laws. Additionally, our Fair Chance Dashboard provides data analytics and resources to help employers measure their progress against EEOC fair hiring guidance and successfully create more inclusive workplaces.
Review and adjudicate records with confidence
Conducting an individualized assessment benefits both your organization and the candidate. It gives your team confidence in hiring decisions, while also helping to reduce bias in the adjudication process. Checkr’s modern platform enables fair hiring decisions through built-in workflows that support compliance, streamline adjudication, and simplify adverse action. Our advanced technology helps companies of all sizes scale faster with less risk–and bring more qualified talent into your candidate pool. Get started.
Nothing in Checkr’s Blog should be construed as legal advice, guidance, or counsel. Companies should consult their own legal counsel about their compliance responsibilities under the FCRA and applicable state and local laws. Checkr expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided.