The New Federal Ban the Box Law Takes Effect

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Featured The New Federal Ban the Box Law Takes Effect

On December 20th, 2021, the federal government’s “Ban-the-Box” law, called “The Fair Chance to Compete for Jobs Act” (Fair Chance Act), took effect. 

This new law prohibits most federal employers and contractors from requesting the criminal history of applicants either verbally or in written form until after a conditional offer of employment contingent only upon the results of a criminal background check is made. [More]

The Fair Chance Act is intended to provide those with a criminal history a fair chance to compete for employment by pushing all inquiries concerning “criminal history record information” back to a later stage of the hiring process. Criminal history record information refers to all information held by criminal justice agencies, including records of arrests, criminal charges, convictions, and incarceration. As a result, covered employers may not include any questions on applications for employment, inquire during an interview, or otherwise ask an applicant about any criminal history until a conditional job offer is made.

Though the act applies to prime contractors, it notably does not appear to apply to subcontractors or place any requirements that a prime contractor must monitor the behavior of their subcontractors. Notably, some positions are also exempted from the Fair Chance Act’s restrictions as well. These include:

  • Positions that are legally required to consider the criminal history of candidates prior to providing a conditional offer of employment.
  • Positions that require determination if an individual is eligible to access classified information, assignment to security-sensitive duties, or participate in the armed forces.

Positions as a law enforcement officer.

For an initial violation of the Fair Chance Act, federal agencies will issue a notice of violation as well as written warnings describing the violation and potential future penalties. For subsequent violations, punishments may include suspension of payment under the contract for which the applicant was being considered and denial of future contracts until the contractor has come into compliance. No private right of action has been created by this act, and applicants or employees must instead use the administrative complaint process created by the Act.

For federal contractors, it is crucial to comply with the Fair Chance Act in order to remain eligible for future contracts. In order to comply, contractors should advise and train relevant HR and hiring personnel in the Act’s requirements. It is also important to work with an employment screening provider you can trust to remain up to date with the ever-changing legal requirements.

Knowledge is power, and learning is the first step. If you’re interested in more information on fair chance hiring, check out our resource, Adverse Action Notice Protocols in Compliance With FCRA

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