We recently announced that we updated our automated adverse action process in our system
to include the individualized assessments, special disclosures and candidate feedback loops that
are required in numerous Ban-the-Box jurisdictions and strongly encouraged by the EEOC.
When you initiate Pre-Adverse Action, a popup window will appear, prompting you to type
the specific reason for initiating Pre-Adverse Action and including a brief explanation for
why this reason would potentially disqualify the applicant.
If your applicant lives in New York City or Los Angeles, the popup will be an Individualized
Assessment form that is required in those cities.
When entering the information in the popup window, you must provide a certain amount of
detail. The information you enter starts the “individualized assessment” process that is required
when implementing a compliant Adverse Action protocol.
For example, if an applicant has a criminal record on a county criminal search, do not just type
into the space provided “county criminal record” or “felony record, XYZ County.”
A better, more compliant approach would be to describe the specific crime listed under that
category with a brief explanation of why the crime would potentially disqualify the applicant.
But keep in mind that the Pre-Adverse Action notice gives the applicant an opportunity to
dispute the accuracy of the information and / or provide an explanation with supporting facts
and documents related to the crime, their rehabilitation efforts, work history, etc.
So a Pre-Adverse notice is not the final word.
If the candidate provides an explanation in response to the Pre-Adverse notice, their explanation must
be considered as part of the individualized assessment.
You might ultimately conclude, after performing the individualized assessment, that the offense still
disqualifies the applicant. If so, you would send a Final Adverse notice. Ten business days after you
initiate Pre-Adverse, we will send you an email with a link that would trigger the Final Adverse notice
being sent to the candidate. However, if the candidate provides an explanation during the initial 10
business days, then the clock on the 10 business days will start over before we send you this email.
When performing an individualized assessment, please keep in mind that the Equal Employment
Opportunity Commission (EEOC), as part of their guidance on the use of arrest and conviction
records in employment decisions has provided employers advice on how to approach these situations.
In their guidance, the EEOC references the ‘Green Factors’, which stem from a court case in which a
railroad used a blanket exclusion policy that prohibited employment for anyone with a criminal history
that included anything worse than a minor traffic offense.
For candidates with a criminal history, the employer must consider several factors.
The ‘Green Factors’ include:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense, conduct and / or completion of the sentence
- The nature of the job held or sought
The nature and gravity of the offense includes factors like the seriousness of the offense and the pattern
and persistency of convictions. The time that has passed since the offense and / or completion of the
sentence makes the distinction between a single conviction from many years ago to a recent conviction.
Employers are also asked to look at the pattern in context. The nature of the job held or sought factor
asks if a job creates an opportunity for a specific kind of crime.
In addition to the ‘Green Factors’, an individualized assessment can consider many other factors:
- Detailed facts surrounding crime
- Applicant’s age at the time of the offense
- Number of offenses committed
- Evidence of rehabilitation
- Work history
It’s essential that employers have a written policy in place that set guidelines on how to proceed with candidates
that have a criminal history.
Considering ‘Green Factors’ as part of an individualized assessment is one part of the process.
Hiring procedures and forms should be reviewed on a regular basis to help ensure legal compliance and consulting
with a legal professional is recommended.
To see how the updated Adverse Action process works in our system, watch this instructional YouTube video.
We hope this helps clarify what types of information to include in your individualized assessment popup when you
click the Pre-Adverse link in our system, and other factors to consider if the candidate provides an explanation.
Please email any questions to [email protected]