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Fair Chance Act of 2019 Delays Criminal Background Checks Until After the Conditional Job Offer

OutSolve

Helps qualified workers with arrest and conviction records compete fairly for jobs with federal contractors and the federal government

On February 7, 2019, Senator Cory Booker introduced the Fair Chance to Compete for Jobs Act of 2019 or shortened to Fair Chance Act [S. 387/H.R. 1076]. The bill passed the House on December 11th and the Senate on December 17th as part of the Defense Authorization Act of 2020. He is currently waiting to be signed into law. The Act shall apply to contracts awarded pursuant to solicitations issued after the effective date of section 2(b)(2) of this Act.

The bill was introduced to “prohibit federal agencies and federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer, and for other purposes.”

Section 3 applies to government contractors and states that an executive agency:

  • “May not require than an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee, and
  • Shall require, as a condition of receiving a federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.”

An exception to the Act includes contracts that require an individual hired to access classified information or to have sensitive law enforcement or national security duties. Not later than 16 months after the enactment of the Act, the Administrator of General Services, along with the Secretary of Defense, shall issue regulations identifying additional positions for which exemptions are made.

Definitions:

  • Conditional offer – an offer of employment in a position in the civil service that is conditioned upon the results of a criminal history inquiry.
  • Criminal history record information –
    • Includes any information that has been sealed or expunged pursuant to the law; and
    • Includes information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency that is analogous to criminal history record information.
    • Shall not apply with respect to an applicant for a position if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.

    Violations to the Act will have the following consequences

  • First violation – contractor will be notified, issued a written warning of the violation with the identification of additional remedies to apply for subsequent violations, and given 30 days to appeal the determination.
  • Subsequent violations – contractor will be notified of the violation and given 30 days to appeal the determination. Depending on the severity of the infraction and the contractor’s history, one of the following may occur:
    • Written guidance indicating that the contractor’s eligibility for contracts requires compliance with the section;
    • Requires the contractor to respond within 30 days affirming that the contractor has taken steps to comply; and
    • Suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance.
    Similar “ban the box” laws have already been adopted in 35 states and over 150 cities and counties across the United States but most cover just private sector employment. There are also 13 states and the District of Columbia who have mandated removal of any conviction history questions from job applications for private employers. These states are California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

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