When the Record Needs Review: Best Practices for Individualized Assessments

December 21, 2021
Checkr Editor

Editor’s note: 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.

Today’s labor shortage is making the act of hiring for open roles even more challenging than ever before. Even without a labor shortage, it can take time and effort to fill new positions. According to Glassdoor, the average company in the United States spends about $4,000 to hire a new employee, taking up to 52 days to fill a position.

In order 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 criminal records. Integrating fair chance hiring into your company can seem intimidating, but it doesn’t have to be. When a candidate has a criminal record on their background check, there is a process to escalate and adjudicate the candidate’s record efficiently while also remaining fair and unbiased. 

This process is called an individualized assessment.

What is an individualized assessment? 

Individualized assessment refers to how the employer reviews criminal records on a background check. Rather than taking the criminal offense at face value, the employer looks at the specific charges, and any special circumstances around the reported offenses, and compares it to the role’s requirements. Note that individualized assessments 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 your individualized assessment responsibilities stem from federal, state and municipal fair-hiring laws. Be sure to work with your legal counsel to understand the laws and regulations around individualized assessment in your jurisdiction.

Why conduct an individualized assessment?

While adding another step to the hiring process may seem daunting, it can have a lasting, positive impact on the candidate in question. The average employer, who requests background checks on candidates, is 63% more likely to call back applicants who do not have records.  Nearly 60% of people with criminal records remain unemployed one year after their release from incarceration, which may increase recidivism rates.

If employers give candidates a chance to provide context around their criminal history, it could give candidates a chance at employment that they may not otherwise have had.

Individualized assessment best practices 

These are some best practices to implement to ensure a timely and fair assessment of candidates with criminal records. We encourage employers to work with their legal counsel to develop individual assessment practices in accord with applicable law and their business needs.

  • Develop a written policy that sets the baseline for how your company’s individualized assessment process will occur, in order to guarantee each assessment is handled in a uniform way.
  • Assemble a panel of individuals from varying backgrounds and expertise areas to ensure you’re fairly assessing candidates without undertaking undue risk. 
  • Apply the nature/time/nature test (more on this below).
  • Acknowledge and discuss any unconscious biases or moral judgements in order to address them and focus on conclusions from the nature/time/nature test.
  • Consider any rehabilitation the candidate has undergone, from completed courses and counseling to personal references. 
  • Give the candidate an opportunity to provide context around the circumstances leading up to the conviction, or dispute the charges. 
  • 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. 

Conducting a nature-time-nature test

As mentioned above, an important step in the individualized assessment process is conducting what’s called the “nature/time/nature test”. Ask yourself the following three questions:

  1. What was the nature and gravity of the offense?
  2. How much time has passed since the offense?
  3. What is the nature of the role in question?

The point of the nature/time/nature test is to determine if the offense and the surrounding circumstances are so correlated as to negatively impact the candidate’s ability to serve in the specific role or the company overall. If the candidate’s past criminal history has no strong correlation to the role or organization, then the employer should consider moving forward with that candidate in the hiring process. The test aims to remove bias and conduct a fair assessment of a candidate’s criminal record. 

For example, if a candidate is applying to a job as a restaurant delivery driver, their recent DUI would create a barrier to employment because the nexus of 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, their DUI doesn’t relate to the skills needed for the role, so it shouldn’t hinder their chances at getting the job.

Consider the power of personalized background check filtering 

Understanding the importance of seeing beyond a criminal record, Checkr’s Assess technology allows your business to apply filtering rules to automatically exclude charges that are irrelevant to your business and roles. For example, if marijuana is legal in your jurisdiction, you can automatically ignore any marijuana-related charges. Parameters for filtering will be personal and unique to your business and its needs, but this can help bring more qualified talent into your candidate pool and help you fill roles more quickly.

Checkr’s Assess feature allows you to streamline your team’s adjudication process by defining rules by which returned records will be evaluated. With better consistency and lower cost-to-hire, you can scale faster with less risk. Learn more about Checkr Assess here.

Giving candidates a fair chance with individualized assessments

Conducting an individualized assessment benefits both your organization and the candidate. It gives your team the security and confidence that you’ve done your due diligence should you choose to hire a candidate with a prior conviction(s)—or if you choose not to hire them. At the same time, it helps you eliminate bias from your hiring process, which gives candidates who may otherwise have been overlooked an opportunity for a brighter future.

Learn more about individualized assessments, and fair chance hiring in general, in our free eBook: How to Be a Fair Chance Employer.

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