Understand the 'Green Factors' When Making Hiring Decisions

Accurately evaluating candidates during the hiring process is instrumental in building a strong organization with a workplace that has high productivity and morale. What should employers do when they’ve identified a great candidate but their background screening came back with a record?

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 handle circumstances such as this. In the guidance the EEOC references the ‘green factors’, which stem from a court case (Green v. Missouri Pacific Railroad) 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.

When faced with a candidate with a criminal history the employer must consider several factors. The three ‘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 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 three ‘Green factors’, an individualized assessment can consider many other factors:

  • Detailed facts surrounding crime
  • Applicant’s age
  • Number of offenses
  • 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 with a criminal history. Thinking of ‘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.


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