Proposed Rule Expands Ban-the-Box Policy for Federal Agencies, Contractors
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The Office of Personnel Management (OPM) published proposed regulations last week implementing the Fair Chance Act (P.L. 116–92 Sec. 1124), which restricts federal agencies’ right to probe candidates about their criminal records during the interview process. OPM is soliciting comments before the deadline of June 27, 2022, on the proposed rule, which appeared in the Federal Register on Wednesday.
The Fair Chance Act codifies the "ban the box" policy that requires all agencies to ask only federal job applicants who have accepted a conditional offer of employment if they have a criminal history, an administrative reform already in place in 2016.
OPM’s proposed rule reaffirms its previous regulations, and makes clear which positions are exempt from asking applicants about their criminal histories. Further, it extends the policy to federal contractors and adds an enforcement component.
“We know that qualified individuals, despite past criminal records, not only deserve a second chance, but also have much to offer the federal government,” stated OPM Director Kiran Ahuja in a memo.
If agencies wish to exempt jobs from the policy, they must submit their requests to OPM, which will evaluate and grant them as needed. The same holds true if a position involves access to sensitive information, national security responsibilities, or federal law enforcement duties.
If a candidate is asked inappropriately about their criminal history, they are entitled to make a complaint to OPM, which can dole out punishment to federal employees who violate the law, including written warnings, suspensions without pay, and civil monetary penalties. Consequences would not be covered by policies governing adverse personnel actions, although an employee may appeal to the Merit Systems Protection Board (MSPB) if they have been suspended for more than 14 days.
The White House has praised the proposed guidance, emphasizing actions taken across government as part of Second Chance Month—an initiative designed to reduce the stigma associated with criminal convictions and allow rehabilitated individuals a second chance.
“Once enacted, these regulations will expand the positions covered by the federal government’s ‘ban the box’ policy, which delays inquiries into an applicant’s criminal history a conditional offer has been made,” the White House stated. “The regulations also create new procedures that outline due process and accountability steps for hiring officials who are alleged to have violated the ‘ban the box’ procedures.”
Senator Rob Portman (R-OH), ranking member for the Homeland Security and Governmental Affairs Committee and co-sponsor of the Fair Chance Act, has also expressed support for the proposed guidance.
“The Fair Chance Act helps increase federal hiring of formerly incarcerated individuals who have paid their debt to society. The OPM guidance provides more transparency regarding federal hiring practices and useful guidance to individuals seeking federal jobs,” stated Kylie Nolan, Senator Portman’s Deputy Communications Director.
