State/City-Specific Adverse Action Processes

Alexis Cowley

This overview of state or city-specific requirements is frequently updated, but legal requirements change quickly in some jurisdictions, and MinistrySafe/Abuse Prevention Systems cannot guarantee all information is current and accurate. The synopsis of content is ours: please read the actual statute, ordinance or provision to form your own conclusions.

Always consult your attorney for legal advice.

The requirements listed below are in addition to the Adverse Action Process outlined here.

California Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Must be conducted before sending the Applicant the Pre-Adverse Action Notice and must include:

The Nature and Gravity of the Offense or Conduct - 2023 Revised Regulations invite employers to consider:

the specific personal conduct of the applicant that resulted in the conviction;
whether the harm was to property or people;
the degree of the harm (e.g., amount of loss in theft);
the permanence of the harm;
the context in which the offense occurred;
whether disability, including, but not limited to, a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
the age of the applicant when the conduct occurred.
Employers should, however, bear in mind that there are prohibitions against asking applicants about medical conditions or disabilities. Such information should only be considered if relevant to the proposed job and volunteered by an applicant.

The Time That Has Passed Since the Offense or Conduct and/or Completion of the Sentence - 2023 Revised Regulations invite employers to consider:

the amount of time that has passed since the conduct underlying the conviction (which may significantly predate the conviction itself) and/or
when the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.

The Nature of the Position Held or Sought - 2023 Revised Regulations invite employers to consider:

the specific duties of the job,
whether the context in which the conviction occurred is likely to arise in the workplace, and/or
whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

Identification of Records: The Pre-Adverse Action notice required must identify the criminal record(s) that may result in the Adverse Action. One method is listing the record(s) in the Pre-Adverse Action notice, such as: Tarrant County Case No. 5555 -Assault- or simply ‘See highlighted records.’

See CA Assembly Bill-1008.

Waiting Period: The Adverse Action process involves a minimum waiting period of 5 days. The 5 business days begin from the date the applicant receives the Pre-Adverse Action Notice. In case the notice is sent via mail or any other method without tracking, it is deemed received 5 calendar days after the mailing is deposited for delivery, only for California addresses. For addresses outside of the state or country, the waiting period is increased to 10 or 20 days respectively.

Relevant Evidence: The employer must conduct a reassessment after reviewing any additional information that the applicant submits in response to the Pre-Adverse Action notice. Relevant Evidence an applicant can submit to an employer:

the applicant’s length and consistency of employment history before and after the offense or conduct;
the facts or circumstances surrounding the offense or conduct;
the applicant’s current or former participation in self-improvement efforts, including, but not limited to, school, job training, counseling, community service, and/or a rehabilitation program (including in-custody programs);
whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct;
the age of the applicant when the conduct occurred;
whether disability, including, but not limited to, a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
the likelihood that similar conduct will recur;
whether the applicant is bonded under a federal, state, or local bonding program;
the fact that the applicant is seeking employment; and/or
successful completion, or compliance with the terms and conditions of probation or parole.

Prohibited Actions: Revised Regulations of 2023 state that employers are prohibited from certain actions when considering an applicant's response to a Pre-Adverse Action Notice:

refusing to accept additional evidence voluntarily provided by an applicant, or by another party at the applicant’s request, at any stage of the hiring process (including prior to making a preliminary decision to rescind the applicant’s job offer);
requiring an applicant to submit any Relevant Evidence;
requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence), or disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses; and/or
requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

Reassessment: Employers may evaluate rehabilitation or mitigating circumstances submitted by employees during the Reassessment based on four factors.

when the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
the applicant’s employment history since the conviction or completion of the sentence;
the applicant’s community service and engagement since the conviction or completion of sentence, including, but not limited to, volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
the applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured in the above subfactors.

Final Adverse Action Notice: After assessing all necessary factors, if an employer decides not to hire the applicant, they must send a final adverse action notice in writing.

See CA Code of Regulations § 11017.

Los Angeles Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment must be conducted before taking Adverse Action against an applicant. Contact MinistrySafe/Abuse Prevention Systems for Los Angeles Individualized Assessment form.
Consideration of rebuttal information: If the applicant provides rebuttal information, employers must consider the information and perform a written reassessment of the proposed Adverse Action. If, after performing the reassessment, the employer takes Adverse Action against the applicant, the employer must notify the applicant of the decision and provide a copy of the written reassessment.

See Chapter XVIII of the Los Angeles Municipal Code Ordinance No. 184652.

These requirements are in addition to California state law requirements.

San Francisco Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Employers must conduct an Individualized Assessment prior to sending a final Adverse Action notice. Before taking final Adverse Action, a waiting period of seven calendar days is required.

See City and County of San Francisco File No. 051638 / Resolution No. 764-05.

Connecticut Adverse Action Process - In addition to the FCRA Adverse Action Process

Final Adverse Action notice must inform the candidate what information in the Background Check led to final Adverse Action and why.

See CT General Statutes Title 46a - Human Rights Chapter 814c Sec. 46a-80.

Illinois Adverse Action Process - In addition to the FCRA Adverse Action Process

Requires specific information to be in the pre and post Adverse Action notices.

Pre-Adverse Action: must identify the disqualifying criminal record(s); consumer has minimum of 5 business days to respond; consumer can provide mitigating information.
Post adverse: must identify disqualifying criminal record(s) and why the convictions(s) disqualifying the consumer; advise consumer if employer has an appeal process and consumer has the right to file a claim with the Illinois Department of Human Rights.

See Department of Employment Security Law of the Civil Administrative Code of Illinois SB1488.

Chicago, Illinois Adverse Action Process - In addition to the FCRA Adverse Action Process

Final Adverse Action: Must inform candidates of the reason for Adverse Action in the final Adverse Action Process.

See City of Chicago Ordinance O2014-8347.

Montgomery County, Maryland Adverse Action Process - In addition to the FCRA Adverse Action Process

Pre-Adverse Action: The process must inform the applicant which records may lead to final Adverse Action.
Waiting Period: Must wait 7 days after sending a Pre-Adverse Action notice to send the final Adverse Action notice.

See Montgomery County Code Chapter 27, Human Rights and Civil Liberties Article XII, Fair Criminal Record Screening Standards Expedited Bill No. 36-14.

Prince George’s County, Maryland Adverse Action Process - In addition to the FCRA Adverse Action Process

Pre-Adverse Action: Must inform the applicant which records may lead to final Adverse Action.
Individualized Assessment: Must conduct an Individualized Assessment prior to sending a final Adverse Action notice.

See Council Bill Reference No. CB-078-2014.

Columbia, Missouri Adverse Action Process - In addition to the FCRA Adverse Action Process

Employers are encouraged not automatically to ban job seekers with a criminal history. Employers may make final employment-related decisions based on all of the information available to them, including consideration of the frequency, recentness and severity of a criminal record as well as rehabilitation efforts against the duties and responsibilities of the position.

See Code City of Columbia, Missouri Ordinance Number 12-34.

Kansas City, Missouri Adverse Action Process - In addition to the FCRA Adverse Action Process

Must conduct an Individualized Assessment prior to sending a final Adverse Action notice. This assessment must demonstrate that the employment-related decision was based upon all information available- including consideration of the frequency, recentness, and severity of the criminal record and that the record was reasonably related to the duties and responsibilities of the position.

See Kansas City, Missouri Code of Ordinances No. Sec 38-104

St. Louis, Missouri Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment recommended: An employer may only base a hiring or promotional decision on an applicant’s criminal history if the employer can demonstrate that the decision is based on all information available including the frequency, recentness, and severity of the criminal history and the history is reasonably related to the job position.

See St. Louis City Ordinance No. 71074.

New Jersey Adverse Action Process - In addition to the FCRA Adverse Action Process

Pre-Adverse Action: As a best practice, employers should include New Jersey’s Summary of Rights with each Pre-Adverse Action notice.

See N.J. Stat. §§56:11‐29‐ 56:11‐41.

New York Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Must be performed per the requirements of NY Corrections Law 23-A.
Candidate access to information: Candidates who request a written statement setting forth the reasons for denial must be provided such a statement within 30 days of the request.
According to the basic terms of Article 23-1, an employer may not deny or terminate employment on the basis of prior criminal convictions, except under two (2) narrowly defined circumstances:

Direct relationship between some or all of the previous criminal offenses and the specific job or position the individual is seeking or holds; or
Hiring, or continuing to employ the individual would present an unreasonable risk to the employer’s property, specific individuals, or the general public.

Contact MinistrySafe/Abuse Prevention Systems for NY Article 23-A Evaluation form.

See NY Article 23-A.

New York City, New York Adverse Action Process - In addition to the FCRA Adverse Action Process AND Article 23-A

Individualized Assessment: To be performed in compliance with NY Corrections Law 23-A. This assessment must be included with the Pre-Adverse Action notice.
Pre-Adverse Action:

Employers must:

Provide a copy of the Individualized Assessment under NY Corrections Law 23-A with the Pre-Adverse Action notice, along with a copy of any information relied on to determine an applicant has a criminal record. This is not limited to a Criminal Background Check and includes any information accessed online and independently. This information can include online search results, conversations with third parties, etc. The time and date you accessed the information must be included. Consider using the official Fair Chance Notice provided by the Commission on Human Rights.
Request additional information concerning rehabilitation or good conduct from candidates with criminal records.
Reassessment after changes to the Background Check - If the applicant demonstrates that the Background Check contained an error, employers must conduct the Article 23-A analysis again, based on the correct information. Employers must then follow the Fair Chance Process again, providing the applicant a copy of the corrected inquiry, the Article 23-A analysis, and 3 additional business days to respond.
Candidate access to information - Candidates who request a written statement setting forth the reasons for denial must be provided a statement within 30 days of the request, in compliance with NY Corrections Law 23-A.

See New York City Human Rights Law under Local Law 4.

Syracuse, New York Adverse Action Process - In addition to the FCRA Adverse Action Process AND Article 23-A

Pre-Adverse Action: Employers are required to inform the candidate of the specific information in the Background Check that could lead to final Adverse Action.

See General Ordinances of the City of Syracuse Chapter 53-4.

Portland, Oregon Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment - Must conduct an Individualized Assessment prior to final Adverse Action.
Final Adverse Action: If an employer rescinds a conditional offer of employment because of an applicant’s criminal history, the employer must notify the applicant of that decision promptly and in writing, identify the specific item of criminal history on which the rescission is based, and provide the source of that criminal history.

This section does not apply to volunteers.

See Oregon Revised Statute 659A.360.

Pennsylvania Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: All employers in Pennsylvania must assess whether convictions relate to the applicant’s suitability for employment in the position for which the applicant has applied.
Consideration of records: Employers should only consider pending cases and felony and misdemeanor convictions. Non-convictions should not be used in the hiring decision, nor should summary offenses.
The employer shall notify in writing the applicant if the decision not to hire the applicant is based in whole or in part on criminal history record information

See 18 Pa. C.S.A. §9124 and 18 Pa. C.S.A. §9125.

Philadelphia, PA Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Must be performed prior to final Adverse Action.
Pre-Adverse Action: The Pre-Adverse Action process must provide an explanation as to why disqualification is being considered and must highlight all convictions supporting potential Adverse Action.
Waiting period: You must wait 10 business days between sending a Pre-Adverse Action notice and sending a final Adverse Action notice.
Final Adverse Action: Your final Adverse Action process must inform the candidate of what specifically in the report led to the final Adverse Action.

See The Philadelphia Code Chapter §9-3500.

Austin, Texas Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Must be performed prior to final Adverse Action.
Final Adverse Action: This notice must state that the final Adverse Action was based on criminal history if the results of the Background Check led to the final Adverse Action.

See City of Austin Code Ordinance No. 20160324-019 and Resolution No. 20150521-025.

Vermont Adverse Action Process - In addition to the FCRA Adverse Action Process

If the employer intends to deny employment due to a criminal record, it must “afford the applicant an opportunity to explain the information and circumstances regarding any convictions, including post-conviction rehabilitation.” A possible solution is to include this invitation to provide information in the Pre-Adverse Action notice.

See Vermont Statute 21 V.S.A. §495J.

Seattle, Washington Adverse Action Process - In addition to the FCRA Adverse Action Process

Pre-Adverse Action: You must inform the applicant which specific convictions relate to the job’s responsibilities, thus warranting a denial.
Individualized Assessment: This location requires employers to perform an Individualized Assessment prior to final Adverse Action.

See Seattle, Washington - Municipal Code Chapter 14.17.

Spokane, Washington Adverse Action Process - In addition to the FCRA Adverse Action Process

Individualized Assessment: Requires an Individualized Assessment be performed prior to final Adverse Action. Employers must conform to EEOC guidance when taking Adverse Action based on criminal records. No employer may disqualify an employee from applicable employment solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job.

See Spokane Municipal Code Ordinance No. C-35564.

Washington DC Adverse Action Process - In addition to the FCRA Adverse Action Process

Pre-Adverse Action notice: A copy of the document Notice of Right to File Complaint must be included with a Pre-Adverse Action notice.
Individualized Assessment: Must conduct an Individualized Assessment prior to sending a final Adverse Action notice.
Revocation of conditional offer: An employer may only take Adverse Action against an applicant for a legitimate business reason. The employer’s determination of a legitimate business reason must be reasonable in light of the Individualized Assessment, which incorporates EEOC criteria.
Candidate’s right to access: If an applicant believes that a conditional offer was terminated on the basis of a criminal conviction, the applicant may request, within 30 days after the Adverse Action, that the employer provide the applicant within 30 days after the receipt of the request:
- A copy of all records procured by the employer in consideration of the applicant, including criminal records; and
- A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights

See DC Office of Human Rights Guidance No. 16-02.

This overview of state or city-specific requirements is frequently updated, but legal requirements change quickly in some jurisdictions, and MinistrySafe/Abuse Prevention Systems cannot guarantee all information is current. The synopsis of content is ours: please read the actual statute, ordinance or provision to form your own conclusions. Always consult your attorney for legal advice.

Tip: To learn more about the Adverse Action Process, please see this article.

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