Individualized Assessment of Criminal Records: How to Do One
Updated 10 min read
Three questions about one record and one job
- What did the person actually do?
- Who or what was harmed, and how badly?
- Misdemeanor or felony?
EEOC V.B.6.a; 2 CCR 11017.1(c)(1)(B)(i); NY Corr. 753(1)(f)
- How long since the conduct?
- How long since release or the end of the sentence?
- How old were they then?
EEOC V.B.6.b; 2 CCR 11017.1(c)(1)(B)(ii); NY Corr. 753(1)(d)–(e)
- What are the specific duties?
- Supervision, setting, access to money or people?
- Could the same harm happen here?
EEOC V.B.6.c; 2 CCR 11017.1(c)(1)(B)(iii); NY Corr. 753(1)(b)–(c)
An individualized assessment is the step between a background report that shows a conviction and a decision about the person. Instead of a blanket rule (“no felonies”), you look at this record against this job, give the person a chance to add context or correct the record, and decide on the specifics. The three questions above come from a 1977 federal appeals case, Green v. Missouri Pacific Railroad, and every rule on this page builds on them.
Individualized assessment generally means telling the person they may be excluded because of past criminal conduct, giving them a chance to show the exclusion should not apply to them, and considering whether what they provide shows the policy, as applied, is not job related and consistent with business necessity.
EEOC Enforcement Guidance No. 915.002 (Apr. 25, 2012), § V.B.9
Under the EEOC's 2012 guidance it is a strong recommendation rather than a rule: Title VII “does not necessarily require individualized assessment in all circumstances,” but a screen without one is more likely to violate Title VII. The guidance reaches every entity Title VII covers, which for private employers means 15 or more employees for each working day in 20 or more weeks of this year or last. The guidance itself says it does not have the force of law. California and New York City go further and make the assessment mandatory, from five and four employees respectively.
Arrests need separate handling. The EEOC is plain that “the fact of an arrest does not establish that criminal conduct has occurred,” so an arrest record alone never justifies a rejection; at most it can prompt a look at the conduct behind it. California goes further and bars arrests that did not lead to a conviction outright, along with sealed and dismissed convictions (our California Fair Chance Act guide lists them all).
What to do
- Drop any blanket “no convictions” rule from your hiring policy.
- Start each assessment from the job description, then the record.
- Never reject on an arrest record alone; in California, leave non-conviction arrests out entirely.
Federal, California and New York City side by side
- Federal
- CA
- NYC
| Point compared | EEOC (federal) | California | New York City |
|---|---|---|---|
| What it is | Guidance; not binding law | Required by regulation | Required by city law |
| Who it reaches | Title VII employers (15+ employees) | Employers with 5+ employees | Employers with 4+ employees |
| When | When a screen would exclude someone | After a conditional offer, before denying | After a conditional offer, before withdrawing |
| Factors | The three Green factors | The three factors, with listed sub-points | Article 23-A's eight factors |
| Tell the person | That they may be excluded | Preliminary notice with the report | Fair Chance Notice with a copy of the check |
| Time to respond | "An opportunity"; no number | 5+ business days from receipt; 5 more if disputing | 5+ business days from receipt of both; job held open |
If you hire in more than one of these places, build one process that meets the strictest column: the assessment happens after the offer, it is written, the person gets the report and your concerns in writing, and nothing is final until at least five business days after they receive it. The federal guidance fits inside that process without changes.
Many other states and cities run their own fair chance rules, some with their own factor lists. Check ban-the-box laws by state and city for every location you hire into. Step-by-step detail for the two strictest places sits in the California and New York City Fair Chance Act guides.
What to do
- One written process, built to the California and NYC columns, covers the federal guidance too.
- Count the response window from the day the person receives the notice, never from the send date.
New York's eight factors (Article 23-A)
| Factor | The employer shall consider |
|---|---|
| (a) | The state's public policy of encouraging the licensure and employment of people with prior convictions |
| (b) | The specific duties and responsibilities necessarily related to the job |
| (c) | The bearing, if any, the offense will have on the person's fitness or ability to do those duties |
| (d) | The time which has elapsed since the offense |
| (e) | The person's age when the offense occurred |
| (f) | The seriousness of the offense |
| (g) | Any information the person (or someone for them) produces about rehabilitation and good conduct |
| (h) | Your legitimate interest in protecting property and the safety and welfare of specific people or the public |
New York State law reaches every private employer with ten or more employees, and New York City applies the same factors through its Fair Chance Act from four. Under § 752 you may not deny a job because of a prior conviction unless there is “a direct relationship between one or more of the previous criminal offenses” and the job, or hiring “would involve an unreasonable risk to property or to the safety or welfare of specific individuals” or the public. The eight factors are how you test those two exceptions.
A certificate of relief from disabilities or a certificate of good conduct creates a presumption of rehabilitation for the offenses it covers, and you must consider it. If you deny the job and the person asks, you owe them a written statement of the reasons within 30 days of the request.
N.Y. Correction Law §§ 753(2), 754
Factor (a) is the one employers skip. It tells you to start from the state's policy of encouraging employment of people with records, so the weighing begins tilted toward hiring. New York also requires the employer that ordered a report with conviction information to hand the person a copy of Article 23-A, which our adverse action notice guide covers.
The worksheet
Ten questions in the order you answer them, with the rule each one comes from. Print it, fill in the right-hand column by hand for each applicant, and keep it in the confidential file. The button below prints the worksheet alone; your browser's own print prints the whole guide.
A worked example: one record, two jobs
| Point compared | Job A | Job B |
|---|---|---|
| The record | Misdemeanor petty theft (shoplifting), conduct in March 2020, age 19; probation completed 2021 | Same record |
| The job | Night-shift warehouse associate: picking and packing, team of six, cameras, no cash, no customer contact | Part-time bookkeeper: bank logins, pays vendors, reconciles accounts, works alone |
| Nature and gravity | Low-value theft from a store, no one hurt, no violence | Same, but the harm type (taking money or goods) matters more here |
| Time passed | Six and a half years since the conduct, five since probation ended | Same |
| Link to the duties | Weak: no money handled, supervised, inventory is counted and filmed | Real: unsupervised access to cash accounts is where theft would recur |
| Evidence offered | Steady retail job since 2022; a reference from that manager | Same, plus a bookkeeping certificate earned in 2024 |
| Outcome | No direct and adverse relationship: confirm the hire | Close call: a preliminary notice only if you can explain the link in writing |
Same person, same conviction, two different answers, because the third factor changes. For the warehouse job nothing in the record touches the duties, and a rejection would be the blanket rule the EEOC calls inconsistent with business necessity. Write two sentences saying so, file the worksheet and move on.
For the bookkeeping job the offense and the duties overlap, so the assessment has to do real work. Time and evidence now carry the weight: years of clean work since, a completed probation, a reference from a manager who trusted them with a till, and a relevant qualification. Many employers would hire on that record with an ordinary control, such as a second approval on payments, which costs nothing and answers the risk directly. If you still lean toward rescinding, that is a preliminary decision, not a final one: in California the notice must name the conviction and include the report, and the applicant gets at least five business days to answer.
Could someone outside the company read your worksheet and see why this record matters for these duties? If the honest answer is “we just do not hire people with theft convictions,” you are back to a blanket rule.
What to do
- Run the assessment per job, not per person; the same record can pass one and not another.
- Look for a control that removes the risk before you consider removing the person.
- Put the timeline on a calendar with the adverse action timeline calculator before you send anything.
What the person can send you
| Evidence | EEOC | California |
|---|---|---|
| They were not correctly identified, or the record is wrong | Listed | Listed (accuracy) |
| Facts or circumstances of the offense | Listed | Listed |
| Number of offenses | Listed | Not listed |
| Age at the time of conviction or release | Listed | Listed |
| Same kind of work since, with no incidents | Listed | Not listed as such |
| Length and consistency of work history | Listed | Listed |
| Education, training, counseling, treatment, community service | Listed | Listed |
| References | Listed | Letters listed as documents |
| Bonded under a federal, state or local program | Listed | Listed |
| Probation or parole completed | Not listed | Listed |
| How likely the conduct is to recur | Not listed | Listed |
| Trauma, abuse, duress or a disability contributed | Not listed | Listed |
The person's side of the story is what turns a records screen into an assessment, so make it easy to give: a named contact, an email address and a date. In California the evidence is voluntary. You may not demand it, insist on a particular document, or ask for medical records or for the person to say they survived abuse; and anything they send before your first look must be weighed in that first look.
If the person sends nothing, the EEOC says you may decide without it. Write down that you asked and when, so the file shows the silence was theirs.
Documentation: what to keep
| Keep | Why |
|---|---|
| The job description used, dated | Factor 3 is judged against it |
| The report or record relied on | California requires a copy in the notice |
| The completed worksheet | Your reasoning, made at the time |
| Every notice, with proof of delivery | Response windows run from receipt |
| What the person sent, and the reassessment | Shows you considered it |
| The final notice or hire confirmation | Closes the decision |
The EEOC's best practices ask employers to record the justification for their screening policy and the research behind it, train the people who apply it, and keep criminal records information confidential, used only for the purpose it was gathered for. Store the file apart from the general personnel folder, limit who can open it, and shred or wipe it when you dispose of it. No federal rule sets a single retention period for these files; check your EEOC and state record-keeping rules before you set one.
In New York, a person you turn down has the right to ask for a written statement of your reasons, due within 30 days of the request. A worksheet filled in at the time makes that letter a copy job.
N.Y. Correction Law § 754
What to do
- Fill the worksheet in as you decide, not after a complaint arrives.
- Keep one confidential folder per applicant with every item in the table above.
- Draft the notices with the adverse action letter generator, so the file matches what was sent.
Common mistakes
| Mistake | Why it fails | Fix |
|---|---|---|
| A blanket "no felonies" rule | The EEOC calls across-the-board exclusions inconsistent with Green | Targeted screen plus assessment |
| Assessing the person, not the job | Factor 3 is about specific duties | Start from the job description |
| Counting an arrest as a conviction | An arrest does not establish conduct | Weigh convictions; in CA drop arrests |
| Deciding before the person responds | The window exists so they can answer | Wait out the full window |
| Demanding proof of rehabilitation | California forbids requiring it | Invite it; never require it |
| No written record | You cannot show the reasoning later | Use the worksheet every time |
Most of these are the same mistake in different clothes: deciding first and documenting second. The order matters because the FCRA notice sequence assumes it too; see the FCRA background check rules for employers for where the assessment sits in the federal steps.
- The three factors
- Gravity, time passed, the jobEEOC 915.002 § V.B.6
- EEOC status
- Guidance, not binding lawEEOC 915.002 (2012)
- Title VII reaches
- 15+ employees42 U.S.C. 2000e(b)
- California requires it
- 5+ employees, after the offer2 CCR § 11017.1(c)(1)
- California response window
- 5+ business days from receipt2 CCR § 11017.1(c)(2)(E)
- New York State factors
- 8, for employers with 10+N.Y. Correction Law §§ 750, 753
- NYC response window
- 5+ business days from receipt of bothNYC Admin. Code § 8-107(11-a)
- NY written reasons on request
- Within 30 daysN.Y. Correction Law § 754
Questions employers ask
Is an individualized assessment required by federal law?
Not in every case. The EEOC's 2012 guidance says Title VII does not necessarily require one in all circumstances, but a criminal records screen without one is more likely to violate Title VII. California and New York City require it by law.
Do I have to do one if the record is clearly unrelated to the job?
The assessment is how you decide it is unrelated. If the answer is no link, it takes five minutes: write that down and hire. The full notice process only starts if you lean toward rejecting.
Can I use a list of disqualifying offenses?
A targeted list built from the Green factors can work, as long as people it screens out get an assessment. In California a bright-line rule that reaches convictions seven or more years old is presumed too broad, and the CRD's June 2025 fact sheet says not to consider those convictions at all; follow the stricter reading.
Who should do the assessment?
Ideally someone in HR who has been trained on your policy; the EEOC lists training decision-makers among its best practices. The hiring manager supplies the job duties, the assessor weighs the record, and the circle stays small because the file is confidential.
Does the person get to see my assessment?
In NYC, yes: you send your analysis with the background check. In California the notice must name the convictions and include the report, but your reasoning is optional. In New York State they can ask for written reasons after a denial. See the NYC Fair Chance Act guide.
What if the conviction comes up after the person has started work?
The same factors apply. California treats a person who started before the check as an applicant, and NYC extended its Fair Chance protections to current employees in 2021. A report used for a decision about a current employee also triggers the FCRA's adverse action notices.