Sheakley Updates

Individualized Assessment of Criminal Background Checks

Ella Baker
Criminal Background Checks
Reading time 6 Mins
Published on Jun 26

Initiatives to remove the criminal conviction question from job applications have seen strong success over the last several years and the push continues to ‘ban the box’ nationwide. Under the guidance of the Equal Employment Opportunity Commission (EEOC), more than 150 cities and 35 states have removed the question from applications for public job positions, with 12 states opting to extend the ban to private employers as well. Often referred to as ‘fair chance’ laws, individualized assessment of criminal background checks allows employers to evaluate the specific circumstance of candidate background checks, rather than making snap decisions based on pre-disclosed information. These laws create space for managers to make fairer hiring decisions that are based on the candidate’s individual situation, leading to a job-related determination rather than a bias-based determination.

Understanding the issue

In the past, many job candidates were disqualified from employment without much consideration when they disclosed past criminal conduct on their job application. Through individual assessments, an employer informs the applicants of any past criminal conduct discovered during the background checks and allows the applicants the opportunity to provide additional information that demonstrates why the crime committed should not exclude them from employment. As part of the legal requirement in states with individual assessment or ‘ban the box’ laws, all of this must happen before the employer initiates an Adverse Action against the job candidate.

EEOC guidance

Going beyond ‘ban the box’, some employers have chosen to adopt best practices set forth by the EEOC in its guidance on using criminal records and background checks in making employment-related decisions. In addition to using the nature/time/nature test when assessing criminal record hits, employers are encouraged to take a closer look at the applicant and the individual circumstances of the crime to ensure that applicants are given a fair chance at consideration for employment

The nature/time/nature test encourages employers to make considerations based on these three criteria:

1. The nature and gravity of the crime committed. How severe was the offense and should it exclude the applicant from employment?
2. The amount of time since the offense and/or completion of sentence. How much time has passed since the crime occurred and should it exclude the applicant from employment?
3. The nature of the job held or sought. How relevant is the crime to the job sought and should it exclude the applicant from employment?

The EEOC also encourages employers to allow the applicant to provide additional information related to their criminal record. These can include the facts or circumstances surrounding the offense, evidence of rehabilitation efforts such as education or training, and character references. Employers should also consider the number of offenses for which the applicant was convicted, post-conviction employment history, consistency of employment history before and after conviction, and whether the applicant is bonded under a federal, state, or local bonding program. Taken together, these best practices ensure that employers are able to make fair hiring decisions based on a broader range of knowledge about the applicant and their situation – not just a box on an application. Check out Consideration of Arrest and Conviction Records in Employment Decisions for more information on the EEOC’s guidance and best practice recommendations.

Define the process

As more states and municipalities pass fair chance laws, it’s more important than ever for employers to make sure that their hiring practices are up to snuff. Written policies regarding the individualized assessment process help create a base line for all hiring managers to follow. Without clear guidance from human resources management, it can be easy for employers to fall back on traditional biases against those applicants who have a criminal record.

Written policies should include guidance for hiring managers on which offenses are too minor or irrelevant to affect an employment decision, specific offenses or factors that should be examined on a criminal record during an individual assessment, detailed guidance on when and how to reach out to a job candidate for additional information on a criminal record, and individualized assessment documentation requirements for candidates for whom the hiring manager will initiate an Adverse Action notice.

HR managers should create position-specific matrixes for hiring managers to use when evaluating criminal backgrounds. Each matrix should include details about the kinds of criminal records that are job disqualifiers. For those crimes that are not disqualifying, the matrix should include space for notes or attachments from the applicant explaining the individual circumstances of the conviction.

Once the written policy is complete, HR managers should distribute the policy and train all hiring managers on the processes involved. HR managers must conduct regular internal audits to ensure that hiring managers aren’t in violation of the company’s individual assessment policy.

Make communication easy

When discussing sensitive matters like criminal history, employers should make it easy for hiring managers and applicants to communicate. Provide an efficient and simple way for applicants to submit information about their criminal history that doesn’t create additional barriers to employment.

Many companies that conduct individualized assessments offer applicants multiple outlets for submitting additional information. Larger companies may have an online application portal that allows applicants to upload supporting documentation at any time during the application process. Other companies reach out to candidates via telephone and allow for a verbal explanation, with the hiring manager taking notes to include in the applicant’s file. Most companies also allow applicants to submit information via email or mail. For companies providing email options, make sure that whoever receives the email (whether it’s the hiring manager, HR manager, or someone else) knows that the information is confidential and must be kept private.

Second chances

With more states and municipalities adopting ‘ban the box’ laws and extending those laws to include private employers, many HR managers and company executives are finding themselves playing catch-up with these new policies. By proactively learning about and beginning to adopt policies for individualized assessments of criminal background checks, employers can stay ahead of the competition and be ready to hit the ground running if these laws are implemented in their state.

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