Guide · For employers
Individualized assessment of a criminal record
An individualized assessment is a look at one person’s record against one job, before you decide. Federal law does not require it, but many states and cities do when criminal history is behind a hiring decision. This guide covers what it is, the factors, which places require it, and which require it in writing.
Reviewed
Primary sources
Part of the process
What it is
Instead of a blanket rule, such as no one with a felony, you weigh the specific conviction against the specific job. The common core, used by federal guidance and most local laws, is three questions:
- The nature and gravity of the offense
- The time since the offense, and since the sentence ended
- The nature of the job, and how the offense relates to its duties
Many places add more: evidence of rehabilitation, the person’s age at the time, the number of convictions, and anything the person sends you.
The FCRA does not require an assessment. The EEOC’s 2012 guidance on arrest and conviction records describes one as a way to avoid discrimination under Title VII. It is guidance, not a regulation, and it remains posted (EEOC Enforcement Guidance, 2012).
Where it is required
For private employers, when criminal history is behind the decision. Each place also limits when you may ask.
| Place | What you must do | In writing? | Law |
|---|---|---|---|
| California | Before the preliminary notice; reassess what the person sends | Optional | Cal. Gov. Code § 12952(c); 2 CCR § 11017.1(c) |
| Los Angeles (city) | Before any adverse action; written reassessment if the person sends anything | Yes | LAMC § 189.03 |
| Los Angeles County (unincorporated) | An initial assessment before the preliminary notice, a second before the final decision | Yes, both | L.A. County Code § 8.300.050(G), (J) |
| San Diego County (unincorporated) | Before denying a job, transfer or promotion | Yes | County Code § 21.2704 |
| Illinois | Weigh six factors before a preliminary decision | No | 775 ILCS 5/2-103.1(B)-(C) |
| Chicago | Weigh six factors before the preliminary decision | No | Municipal Code § 6-10-054(c) |
| New York State | Apply the Article 23-A tests and weigh eight factors; a written statement of reasons within 30 days if the person asks | No (reasons on request) | N.Y. Correction Law §§ 752-754 |
| New York City | Request information from the person, then a written Fair Chance analysis, given to the person with the notice | Yes | N.Y.C. Admin. Code § 8-107(11-a); 47 RCNY § 2-04 |
| Rockland County | A written Article 23-A analysis, with a copy to the person | Yes | County Code § 290-5 |
| Westchester County | An Article 23-A analysis before any adverse action | No | Laws of Westchester County § 700.03(a)(10) |
| Philadelphia | Six factors before any rejection; no automatic exclusions | No | Phila. Code § 9-3504(3) |
| Washington | Have and document a legitimate business reason | Documented | RCW 49.94.005(6), 49.94.010 |
| Seattle | A legitimate business reason, believed in good faith on what you knew at the time | No | SMC 14.17 |
| Gainesville | Before any adverse action based on criminal history | No | City Code § 14.5-181(f) |
Several cities apply a similar duty only to their own contractors or vendors, among them Boston, Cambridge, Worcester, Detroit, New Haven, Richmond (California) and Syracuse.
Each place’s state page carries its sources. The adverse action letter generator lists every assessment step that applies to the job, and in the places that require it, includes the written assessment with the notice.
Doing it well
What the laws above have in common.
- Do it before the pre-adverse action notice, so the notice can name the convictions behind your preliminary decision
- Tie each conviction to specific duties of the job, not to the job title alone
- Consider what the person sends you, such as evidence of rehabilitation or an error in the record, before you decide
- Where a written assessment is required, give the person a copy with the notice; where it is optional, a written record still shows what you considered
Some places also bar you from considering certain records at all, such as arrests without conviction or sealed records. The state pages list them.
Sources
State and local laws: the sources on each state page and in the letter generator.
Last reviewed · General information, not legal advice.