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.

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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:

  1. The nature and gravity of the offense
  2. The time since the offense, and since the sentence ended
  3. 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.

PlaceWhat you must doIn writing?Law
CaliforniaBefore the preliminary notice; reassess what the person sendsOptionalCal. Gov. Code § 12952(c); 2 CCR § 11017.1(c)
Los Angeles (city)Before any adverse action; written reassessment if the person sends anythingYesLAMC § 189.03
Los Angeles County (unincorporated)An initial assessment before the preliminary notice, a second before the final decisionYes, bothL.A. County Code § 8.300.050(G), (J)
San Diego County (unincorporated)Before denying a job, transfer or promotionYesCounty Code § 21.2704
IllinoisWeigh six factors before a preliminary decisionNo775 ILCS 5/2-103.1(B)-(C)
ChicagoWeigh six factors before the preliminary decisionNoMunicipal Code § 6-10-054(c)
New York StateApply the Article 23-A tests and weigh eight factors; a written statement of reasons within 30 days if the person asksNo (reasons on request)N.Y. Correction Law §§ 752-754
New York CityRequest information from the person, then a written Fair Chance analysis, given to the person with the noticeYesN.Y.C. Admin. Code § 8-107(11-a); 47 RCNY § 2-04
Rockland CountyA written Article 23-A analysis, with a copy to the personYesCounty Code § 290-5
Westchester CountyAn Article 23-A analysis before any adverse actionNoLaws of Westchester County § 700.03(a)(10)
PhiladelphiaSix factors before any rejection; no automatic exclusionsNoPhila. Code § 9-3504(3)
WashingtonHave and document a legitimate business reasonDocumentedRCW 49.94.005(6), 49.94.010
SeattleA legitimate business reason, believed in good faith on what you knew at the timeNoSMC 14.17
GainesvilleBefore any adverse action based on criminal historyNoCity 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.

State law

Background check laws by state

Pick a state to see what its law adds to the federal FCRA. A darker state has state law on more of the eight topics we cover.

  • State law on 1 to 3 topics
  • 4 or 5 topics
  • 6 to 8 topics

Every state, with its review date