The United States Office of Personnel Management (OPM) has proposed initial regulations in order to implement the federal government’s “ban-the-box” regulations, officially known as the Fair Chance to Compete for Jobs Act of 2019. If put into effect, these proposed rules will apply to federal employees and would provide a model for future regulations on how federal contractors may consider the criminal history of both candidates for employment as well as current employees.
This law was originally introduced as part of the National Defense Authorization Act for Fiscal Year 2020, which was passed into law in 2019 and took effect on December 20th, 2021. This law applies to both executive agencies as well as contractors for both civilian and defense agencies. For both types of contracts, U.S. Code § 4714 (a)(b) provides the same language, which is that the government “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.”
However, the text left many questions regarding the means by which the act would be carried out unanswered, and many of these were expected to be answered when the Federal Acquisition Regulatory Council (FAR Council) issued a set of rules to implement its requirements. These rules are to be consistent with the rules issued by OPM, and the FAR Council may, through the Administrator of General Services, detail specific categories of positions that will be exempted from the requirements.
Many of the OPM’s regulations will apply only to federal employees; however, the proposed regulations provide numerous details which may prove of interest to federal contractors. Most notably, these regulations provide certain positions which would not be covered by the prohibitions on collecting criminal history information. This includes positions for which federal agencies would be legally required to collect criminal history information prior to an employment offer, positions that may have access to classified information, positions designated by the Office of the Director of National Intelligence and OPM as sensitive, dual-status military technicians under certain conditions concurrent to current military service, federal law enforcement positions, and positions subject to a political appointment.
Agencies do have the option of requesting an exemption from OPM. Although, this will be decided on an individual basis. These requests will be considered by the OPM by considering the specific job-related reasons that the agency should find necessary to analyze an applicant’s criminal history for the job before making a conditional job offer. Although, there are some jobs that do require this, such as those that involve interacting with minors, managing financial transactions, or having access to sensitive information. OPM will consider factors including the nature of the job and if a clean criminal history record would be necessary in order to fulfill any of the duties of the job effectively, as well as other factors.
The regulations the OPM is proposing will establish a process that will allow job applicants to report alleged violations of the Fair Chance Act. Applicants would first file their complaints with the employing agency. This agency would investigate and then transmit the complaint along with the report of the investigation to OPM. After this, should OPM find that an employee of the agency violated the Fair Chance Act, OPM could instruct the employing agency to do the following: give the employee a written warning, suspend the employee, or impose a civil penalty.
There is a notice-and-comment period for the NPRM that runs until June 27th, 2022. Anyone interested in commenting can do so through the Federal eRulemaking Portal. After this period, the OPM can issue a final rule, and then the FAR Council can also propose regulations that will likely be basically consistent with the NPRM. In fact, the FAR Council will need to explain any substantial changes to the OPM regulation. It’s hard to tell how close the contractor regulations will be to the ones the OPM has issued. However, since the FAR Council is required by statutory mandate to make its regulations similar to the OPM regulations, federal contractors should be prepared for the FAR to change.
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