When the Record Needs Review: Best Practices for Individualized Assessments

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.

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.

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 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.

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.

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.

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.

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An individualized assessment is a fair chance hiring practice where employers evaluate a candidate's criminal record on a case-by-case basis rather than applying blanket disqualification policies. This process examines the specific offense, the circumstances, and the offense’s relevance to the position to make an informed hiring decision. Employers may also consider factors like rehabilitation efforts and the time that’s elapsed since the conviction. Learn more about fair chance hiring practices to comply with EEOC guidelines and state fair chance laws.

The Green Factors stem from a 1977 federal court case and provide a framework for evaluating criminal history in hiring decisions. These three factors include:

Employers use this "nature-time-nature" test to determine whether a criminal record is job-related and consistent with their business’s needs, as recommended by EEOC guidance.

Effective individualized assessments require a structured approach to treat candidates fairly and comply with legal requirements. Employers should establish a written policy that outlines their assessment process, train hiring managers on proper evaluation techniques, and assemble diverse review panels when possible. Additionally, provide candidates with pre-adverse action notices and opportunities to explain their circumstances or present any evidence of rehabilitation. Document each decision thoroughly using the Green Factors framework. Consider implementing automated adjudication tools to maintain consistency while allowing for individualized review of complex cases.

It’s a concern when a candidate's criminal history directly relates to essential job functions and poses legitimate risks to your business. Examples include:

These situations all warrant serious consideration. However, even apparent red flags should undergo an individualized assessment—consider the offense's recency, severity, and any other mitigating factors. Review your background check policy to ensure it balances risk management with fair chance hiring principles.

The timeline of an individualized assessment varies depending on the complexity of a case, but employers should aim to finish reviews within 5-10 business days. Simple cases often resolve quickly, while complex ones that require additional information take longer. Automated background screening solutions can streamline the process while allowing you to thoroughly consider individual situations.

Trained personnel who understand fair chance hiring laws, EEOC guidelines, and your organization’s policies should conduct individualized assessments. Many companies designate HR professionals, compliance officers, or hiring managers who have received specific training on the Green Factors and legal requirements. For consistency and reduced bias, consider establishing a review committee that can provide diverse perspectives. Some organizations partner with background screening providers that offer adjudication services to evaluate thoroughly while your business maintains the final hiring authority.

If you’re required by law to conduct individualized assessments, you must have the following documentation:

Keep copies of pre-adverse and adverse action notices, candidate responses, and any supporting materials. Proper documentation protects both employers and candidates while demonstrating compliance with fair chance hiring laws. It also demonstrates that you conducted a genuine individualized assessment rather than automatically disqualifying the candidate.

Yes, under some state laws and local ordinances, a candidate may provide additional information (e.g., evidence of rehabilitation) and even contest the accuracy of the decision. Under these laws and ordinance, employers must consider this information before final decisions. Understanding adverse action procedures helps your team remain compliant.

Rehabilitation evidence is a critical component of individualized assessments and demonstrates a candidate's efforts to move beyond their past mistakes. Employers should consider: 

The EEOC specifically recommends that employers evaluate candidates’ rehabilitation when assessing their criminal history. Candidates who’ve shown sustained positive change may present lower risk despite past convictions.

State and local fair chance hiring laws significantly impact how employers conduct individualized assessments, with requirements varying by jurisdiction. Some states mandate assessments before adverse action, prohibit employers from considering certain offenses, or establish specific review timelines. California and New York have particularly comprehensive laws. Stay current by consulting fair chance hiring resources and legal counsel.

The resources and information provided here are for educational and informational purposes only and do not constitute legal advice. Always consult your own counsel for up-to-date legal advice and guidance related to your practices, needs, and compliance with applicable laws.