Individualized assessments under EEOC + NY Article 23-A

What an individualized assessment actually is

New York's Correction Law Article 23-A — enacted in 1976, more than three decades before the EEOC's 2012 Enforcement Guidance on Arrest and Conviction Records — codified the same requirement: employers must evaluate whether a specific candidate's criminal history is job-related and consistent with business necessity for a specific role. Both the Guidance and Article 23-A treat the assessment as individualized: it cannot be a categorical exclusion ("we don't hire anyone with a felony"), and it cannot be a rubber stamp ("the matrix said no, so we said no"). It must engage with the facts of this candidate and this job.

The eight factors that show up in every assessment

1. The facts and circumstances surrounding the offense or conduct.
2. The number of offenses for which the individual was convicted.
3. The age of the individual at the time of the offense.
4. The time that has elapsed since the offense or conduct.
5. The nature and severity of the offense and its relation to the duties of the position.
6. Evidence of rehabilitation and good conduct.
7. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
8. Any certificate of relief from disabilities or certificate of good conduct issued to the applicant.

The first seven come from EEOC's Green factors as elaborated in the 2012 guidance. The eighth is unique to New York and carries a presumption of rehabilitation when present. Other states (California, Illinois, Massachusetts, the District of Columbia) have adopted variations on the same framework.

The worksheet

The SafestHires assessment worksheet asks the adjudicator to answer, in writing, for each conviction returned:

• What were the facts of the offense? (Free-text, minimum 80 characters.)
• How long ago did the offense occur? (Auto-calculated from the disposition date.)
• What were the candidate's circumstances at the time? (Free-text, optional, encouraged.)
• What evidence of rehabilitation is present in the file or candidate response? (Checklist + free-text.)
• What are the core duties of the role? (Pulled from the job description; editable.)
• Is there a specific, articulable nexus between the offense and the duties? (Required free-text, minimum 120 characters.)
• Have we considered a less restrictive alternative (different role, supervised period, delayed start)?

The worksheet does not let the adjudicator advance without completing every field. The completed worksheet is attached to the candidate file, becomes part of the pre-adverse-action packet sent to the candidate, and is preserved in the audit log.

Six anonymized case studies

Case 1 — The 2009 felony, the 2024 warehouse role

Candidate disclosed a 2009 felony drug possession conviction. Role was order picker at a 1.2M sq ft distribution center, no fiduciary or safety-sensitive component, supervised shifts. Assessment found no nexus; offer extended. Reasoning preserved: 15 years elapsed, single offense, candidate completed probation in 2011, no further contacts, role does not involve cash, controlled substances, or unsupervised access to vulnerable populations.

Case 2 — The recent DUI, the delivery driver role

Candidate's 18-month-old DUI conviction returned. Role required commercial driving. Assessment found direct nexus; adverse action proceeded. Less-restrictive alternative considered: candidate offered a non-driving warehouse role at lower pay; candidate accepted.

Case 3 — The juvenile adjudication

Record returned a 2003 juvenile adjudication when candidate was 16. Assessment flagged that juvenile adjudications are generally not "convictions" under FCRA §605 reportability rules and that EEOC guidance specifically discounts offenses committed during youth. Offense was not considered; offer extended without further assessment.

Case 4 — The pattern, not the single offense

Five separate convictions over eight years for theft-related offenses. Role: bank teller. Assessment found a sustained pattern with direct nexus to fiduciary duties. Adverse action proceeded. Worksheet documented the pattern analysis, the recency of the most recent offense (14 months), and the absence of any rehabilitative milestones in the candidate's response.

Case 5 — The expunged record

Candidate's record showed an arrest with no disposition, dating from 2018. SafestHires research confirmed the case had been sealed under state law in 2020. Per FCRA §605(a)(5), sealed records may not be reported by a CRA. Record was removed from the report and the candidate was notified; no assessment required.

Case 6 — The certificate of relief

New York candidate with a 2017 felony conviction held a Certificate of Relief from Disabilities issued by the sentencing court. Per Article 23-A §753(2), this creates a presumption of rehabilitation. Role was customer service; no nexus. Offer extended; assessment cited the certificate.

The audit trail SafestHires generates per match

For every record evaluated, the platform preserves:

• The completed assessment worksheet with timestamps for each field.
• The job description as it existed on the assessment date.
• The candidate's response (if any) and supporting documents they submitted.
• The adjudicator's identity, role, and the matrix outcome they selected.
• Any escalation to a senior reviewer or counsel, with notes.
• The final decision and the decision-maker.

In aggregate, the audit log lets compliance teams answer the question the EEOC actually asks during a charge investigation: "Show us how you assessed this candidate, and show us how that compares to the other 200 candidates you assessed this year with similar records." Pattern evidence is what wins or loses these cases. SafestHires produces the data on request.