Federal contractors can no longer inquire about an applicant’s criminal history before extending a conditional job offer. The Fair Chance to Compete for Jobs Act of 2019 (“Fair Chance Act”) took effect at the end of 2021. Exceptions to the Act include positions related to law enforcement and national security duties, jobs requiring access to classified information, and roles required by law to reveal criminal history information before the conditional offer stage.
The Act further prohibits civilian and defense executive agencies from either awarding federal contracts or releasing payment to a contractor who violates the statutory requirements.
However, the Fair Chance Act does not preclude criminal history inquiries during all stages of the hiring process. A federal contractor can ask questions related to criminal history after a conditional offer has been extended to the applicant. If an applicant reveals an arrest or conviction, guidance issued by the U.S. Equal Employment Opportunity Commission advises employers on how to proceed. More specific guidance is expected to be released by the Office of Personnel Management (“OPM”). OPM will also establish a reporting process for violations and a penalties scheme.
In addition to the federal Fair Chance Act, federal contractors should be aware of their obligations under other federal, state, and local laws. Currently, at least 15 states and many localities have adopted ban-the-box laws that prohibit private employers from inquiring about criminal conviction history on job applications.
Federal contractors should review and revise, if necessary, hiring practices, application forms, and policies and procedures to ensure compliance.