An individual assessment is a tool that can be used as part of the hiring process when needing to take an additional step to evaluate the qualifications of a candidate. This is especially true when considering a ‘second chance’ candidate. Currently, more organizations are adjusting their policies to incorporate individual assessments not only to be compliant, but also to help them get a deeper understanding of a candidate’s qualifications and potential. With the labor shortage employers recognize that taking a deeper look may help to discover a potential good candidate that they might otherwise have passed on hiring.
What Is an Individual Assessment?
Essentially, an individualized assessment is a person-specific process that allows a candidate to provide additional information and evidence that may not have been considered during the hiring process that a conviction is not related to his or her ability to perform a job. It allows employers the opportunity to determine whether a criminal record is specifically related to the position being applied for and to better assess the suitability of hiring the individual.
The initial impetus that drove the use of individual assessments in the hiring process came as a result of the Equal employment Opportunity Act Commission (EEOC) issuing its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.
The EEOC does allow employers to use convictions in the hiring decision as long as the ‘Green Factors’ are applied:
The three Green factors are:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence, and.
- The nature of the job held or sought.
a) The Nature and Gravity of the Offense or Conduct
Under this consideration, the employer must analyze the seriousness of the offense and whether it involved violence. There is a big difference in a conviction for rape versus possession of marijuana, and employer’s should take this into consideration.
b) The Time That Has Elapsed Since the Offense, Conduct, and/or Completion of the Sentence
Considering the time that has elapsed since a conviction or an offender has been committed a crime is crucial in conducting an individual assessment. A single conviction in the past does not carry the weight as a recent conviction. If the offender has gone for a many years without committing any offense the risk of hiring them is likely diminished.
Research by Carnegie Mellon indicates that after 5 years of being free of committing a crime a person with a criminal record is no more likely to commit a crime than a person without a criminal record.
c) The Nature of the Job Held or Sought
Employers should also assess the nature of the job a candidate is seeking and how it relates to the criminal offense that was committed. The past offense should not have a significant nexus with the nature of the work to be performed in the job.
For instance, if a candidate has a criminal history for stealing car it would be unwise to hire them as Parking attendant. However, if the nature of the job does not have a tight connection to the person’s criminal record the employer should consider the candidate for the job.
To establish that a criminal conduct exclusion is valid the employer must establish that the gravity, nature of the crime, the job relatedness and time that has elapsed since a prior conviction are consistent with business necessity. The employer needs to show that their policy operates to effectively assess specific criminal conduct against the nature of the work to be performed.
The individualized assessment would consist of notice to the individual that he/she has been screened out because of a criminal conviction and to provide an opportunity for the individual to demonstrate that the exclusion should not be applied due to circumstances surrounding their situation. It is fully at the discretion of the employer to determine whether the additional information provided by the candidate warrants additional consideration.
The individual’s showing may include information that he/she was not correctly identified in the criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence includes, for example:
- The facts or circumstances surrounding the offense;
- The number of offenses for which the individual was convicted;
- Age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training;
- Employment or character references and any other information regarding fitness for the availabe position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
Please note that the EEOC does not prescribe the factors that you must consider in conducting your individual assessment. Consequently, you should do your best to make sure your assessment demonstrates a ‘good faith’ effort to allow a candidate to share relevant information.
Also, if the individual does not respond to your attempt to gather additional information about his background the employer may make its employment decision without the information.
In addition, it is important to note that the EEOC Guidance does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid potential liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.
The following is a Guide that may help employers can use in creating an Individual Assessment Process:
- Design a written policy; This policy should outline exactly what your organization intends to achieve with the individual assessment and how you will structure and implement it.
- Identify position-specific criteria to identify and categorize criminal records; Having clearly defined criteria that identifies specific offenses that are acceptable and unacceptable to the employer based on the nature of the work to be performed.
A best practice is to include this criteria in job descriptions. - Create an Oversight Team; Ensure that the individual assessment process is centralized and overseen by a core team. This team will exclusively review cases to determine the best course of action and will limit the people that have visibility to applicants being reviewed to keep the process impartial and to avoid discrimination issues.
- Create a formal process to assess candidates; Remember, thewhole point of an individual assessment process is to allow candidates to ‘share their story’ beyond the information that is provided in a background check. This may include disclosing unique circumstances surrounding or mitigating factors regarding their criminal record, their rehabilitation efforts, providing references from relevant people about their rehabilitation, e.g., parole officer, Second Chance program counselor, pastor or minister, college professors, etc. and any other relevant facts or information to demonstrate their suitability for the position.
Remember the point of the individual assessment is for the employer to take a deeper look the suitability of the candidate so it is helpful to provide the candidate a ‘road map’ regarding the type of information they can present with examples, to illustrate what a ‘good individual assessment’ looks like. - Conduct training; Once you have a comprehensive and objective individual assessment policy, train individuals that are involved in the hiring process on the individual assessment program.
To ensure the on-going viability of your program this training should be offered on a regular basis to ensure that new hiring managers are always trained in the program. You may want to consider creating an online program that can be quickly and easily administered with automatic record keeping of attendance.
Provide additional training for the members of the ‘oversight team’ to ensure they are properly educated and equipped to make decision regarding the hiring process.
As an employer, you want to hire the right person while simultaneously avoiding putting your people, brand and profits at risk and a well-designed individual assessment process can help you achieve this goal. While initially established as a compliance tool to help reduce discrimination against minority groups, if designed and implemented well the individual assessment process may help you find candidates that you may have overlooked who end up making a great contribution to your organization.