Federal Government’s “Ban the Box” Policy in Effect

The federal government is the latest employer to adopt fair chance hiring requirements for certain parts of its workforce and contractors. The goal being to assist qualified workers with a criminal history to compete for employment within federal agencies as well as with federal contractors by not having to discuss or report such information until after a conditional offer of employment is made.

Application to the Federal Government

The Fair Chance Act (also known as the Fair Chance to Compete for Jobs Act) was included in the National Defense Authorization Act for FY 2020 (NDAA). It became Public Law No. 116-92 on December 20, 2019, and took effect two years after the NDAA was signed into law by the President. Meaning, it applies to federal contracts and solicitations as of December 20, 2021.

Generally, it applies to all federal agencies (e.g., executive, legislative, and judicial branches) as well as federal civil contractors and defense contractors.

It prohibits a federal agency from requiring — either orally or in writing — that an applicant for appointment to a position in the civil service disclose criminal history record information about themselves before the extension of a conditional offer of employment.

Prohibited criminal history record information includes arrests, indictments, information, or other criminal charges and any dispositions arising from those. It also includes a prohibition on the use of sealed and expunged information as well as juvenile delinquency information. The latter is generally not reportable regardless of the Fair Chance Act. Exceptions to this prohibition exist, including if the position requires consideration of criminal history record information by law as well as for law enforcement positions. Additional exceptions may apply for positions that involve interaction with minors, access to sensitive information, or managing financial transactions (regulations are pending on these exceptions).

Application to Private Federal Civil Agency and Defense Contractors

The same prohibition applies to federal contractors and prohibits a civil agency or defense contractor from requesting the disclosure of criminal history record information regarding an applicant for a position to work under a federal contract prior to the contractor extending a conditional offer to the applicant. Exceptions exist for positions that require access to classified information or that have sensitive law enforcement or national security duties.

Penalties for federal contractors for failure to comply with this requirement include (i) a written warning for first-time violations; and (ii) potential suspension of payment under the contract for subsequent violations until the contractor demonstrates compliance with federal law.

Regulations

The Fair Chance Act requires the Administrator of General Services, the Secretary of Defense, and the Federal Acquisition Regulatory Council to issue regulations to implement the Fair Chance Act.  They have not yet done so.

Action Items

Private employers nationwide have to comply with a range of fair chance hiring laws in effect at the state, county, and even city level, each with varying requirements. The Fair Chance Act adds an additional layer for federal civil agencies and defense contractors to consider when hiring candidates to work on federal contracts starting in 2022. Federal contractors may see new or amended solicitations and contract clauses specifically prohibiting them from inquiring into a job applicant’s criminal past until a conditional offer of employment has been made.

In addition, affected private employers should review their hiring policies and procedures to ensure that questions are not being asked about criminal history prior to a conditional offer of employment, either during the hiring process or on job applications.

The Fair Chance Act mirrors traditional “ban the box” laws in that it simply restricts when the employer may inquire whether a candidate has a criminal history. Notably, the Fair Chance Act does not include additional requirements — such as notice, a waiting period, or an individualized assessment — that go beyond the traditional “ban the box” mandate. Such additional requirements are generally found in broader state and local fair chance hiring laws.

Finally, and to be clear, private employers may still conduct a criminal history background check as part of their hiring and onboarding process, and may consider criminal history as part of the hiring process. What is different about the Fair Chance Act is the timing of any such inquiries, and consideration of such information, as it cannot occur until after a conditional offer of employment is made.

—

For questions related to the Fair Chance Act or employment-related background checks generally, please contact Kevin Coy, Montserrat Miller, or Erin Doyle at Arnall Golden Gregory LLP.