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Once the job offer has been made, the employer may inform the prospective employee that the offer is contingent upon a successful criminal background check. If the background check returns some criminal history, an employer must complete the “fair chance process” before revoking the offer. The employer must perform an "individualized assessment" to determine how that specific criminal history affects the prospective employee’s ability to perform their specific job functions — this means that the employer must compare the specific offenses to the proposed job duties.
For example, if a criminal history report reveals that the prospective employee was convicted of a felony driving while under the influence, but they will not be doing any driving as part of the job, the criminal history has limited impact on the nature of the job sought.
Conversely, if the criminal history yields serious violent crimes and the position will work closely with the public, an employer may determine that the nature of the offense or conduct greatly affects the prospective employee’s ability to perform the job duties.
Once the employer has performed an adequate individualized assessment and determines that the criminal history warrants revoking the job offer, the employer must follow strict notice procedures to do so in compliance with state law.
Use the Criminal Background Screening Checklist to help you understand how to follow all legally required procedures.
If an employer has a question about any aspect of this process, they should consult with legal counsel to ensure compliance with these criminal history check rules.
Read more about Restrictions on Obtaining a Criminal History, including the Individualized Assessment and Notice Requirements, in the HR Library.