How to conduct in-house individualized assessments

Employers in the US have to conduct individualized assessments of any candidates found to have a criminal record during the application process. Here we’ll outline guidelines from the Equal Employment Opportunity Commission (EEOC) for assessing individual candidates. We’ll also give you some tips on how to implement your own in-house individualized assessment protocol to ensure compliance when hiring.

The regulations surrounding criminal record reporting and investigating when hiring are being continually updated to ensure fairness for job seekers and employers. However, regulations in different states often contradict each other, giving hiring managers headaches when trying to ensure compliance with local and federal employment and equality laws.

Confounded by contradictory employment and equality laws

An example of such contradictions is the ‘Ban the Box’ laws, adopted by at least half of the states across the country, which means that job applicants aren’t obliged to reveal to employers any past criminal convictions, and employers in those states aren’t allowed to include a criminal history checkbox on application forms. On the other hand, employers are obligated to do their due diligence when hiring, to ensure they don’t employ an individual that could pose a risk to the organization and other employees. This puts employers between a rock and a hard place. They can’t demand that candidates reveal any previous criminal convictions but they must do sufficient background checks, including criminal history checks, to guard against making a bad hire. That’s where the individualized assessment comes in.

What are individualized assessments and when are they done?

Think of Individualized Assessment a process that’s used by recruiters to dictate how the employer reviews records during a criminal background check.

Individualized assessments do not apply to all job candidates. Employers only refer to this process when, during the selection process, they discover that a candidate has a criminal record. Then they have to decide in the eyes of equality and employment laws whether the candidate’s criminal record is sufficient reason to eliminate him or her from the selection process.

There are two factors that largely affect how employers develop their own in-house individual assessment procedures, one: the nature of the crime, and two: whether the crime is relevant to the job position. Employers have to keep in mind that they mustn’t reject a candidate based solely on the discovery of a criminal record, especially if that record is for petty crimes and misdemeanours which wouldn’t otherwise impact their ability to perform the duties demanded of that particular position.

Equal Employment Opportunity Commission Guidelines

Here’s an overview of the guidelines for employers laid out by the EEOC.

• Employers should conduct individualized assessments when criminal history is part of the exclusion criteria when hiring.
• Employers should consider the extent of background checks necessary for each candidate case.
• Employers must give applicants the opportunity to explain their criminal history.
• Employers must consider the nature and seriousness of crimes recorded.
• Employers must consider the amount of time that has passed since the conviction and/or the completion of any time served for the offence.
• Employers must consider the nature of the role or position within the organization.

The above points are basic guidelines only. Individualized assessments are by their very nature unique to each candidate. Embarking on individualized assessments is a deeper investigation into the candidate’s specific circumstances. Among the other factors employers must consider are the number of offences and whether rehabilitation programs have resulted in any positive change in the candidate or at least resulted in a drop in their criminal activity.

Implementing your own in-house individualized assessment process

As each organisation has its own unique requirements, recruitment managers of the Human Resources department should formulate and implement a policy for individualized assessment procedure that’s specific to the nature of the organization. Here are some basic questions to answer when creating the policy:

• What kind of offences do not affect employment decisions?
• Which factors to investigate on a criminal record?
• What’s the process for asking candidates to reveal their criminal history?
• How do you give candidates the opportunity to provide you with explanations or context for any recorded crimes?
• How do you assess whether the crimes are relevant to the job position?

How we can help you

Our employment and legal experts at Intelimasters can help you formulate a tailored individualized assessment policy for your organization, depending on location and industry plus other specific employment requirements. We can also give you advice and assistance on incorporating employment policies into robust background screening checks.