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New Federal Fair Chance Act Prohibits Federal Contractors from Inquiring About or Seeking Criminal History from an Applicant Before a Conditional Offer of Employment is Made

February 10, 2020

On December 20, 2019, the president signed into law the National Defense Authorization Act, which includes the Fair Chance to Compete for Jobs Act of 2019 (“Fair Chance Act” or “the Act”). The Fair Chance Act prohibits federal contractors, and government agencies, from requesting or seeking criminal history information about an applicant for a position within the scope of a federal contract before a conditional offer of employment is made. The Act, like other state and local “ban-the-box” laws, such as those reported here[1], is intended to afford individuals with past criminal convictions a better opportunity to obtain employment by deferring any pre-employment inquiry into an applicant’s criminal history until after a conditional offer has been made. The new law will go into effect on December 20, 2021. 

Exceptions

Notably, this new law does not preclude pre-offer inquiries where criminal background checks are otherwise required by law. Additionally, the prohibition does not apply with respect to (1) “a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties” or (2) other positions identified under regulations to be issued no later than April 2021 (within 16 months of enactment of the Act).

The Act directs the Administrator of General Services to promulgate regulations identifying additional positions that are exempt, which may include “positions that involve interaction with minors, access to sensitive information, or managing financial transactions.”

The General Services Administration is also directed to establish and publish procedures under which an applicant for a position with a federal contractor may submit a complaint and to establish penalties, including a written warning for an initial violation and suspension of payment under the pertinent contract in the event of subsequent violations.

Next Steps

In light of this new law, federal contractors should review any hiring or other employment materials (such as applications or job postings), policies or practices that request information regarding an individual’s arrest and conviction history; and make any necessary changes to comply with this new law by December 20, 2021.

Please do not hesitate to contact any of our attorneys if you have any questions or would like assistance reviewing or revising your company’s employment applications and materials and pre-employment procedures to comply with this new law.


[1] January 30, 2017:  Los Angeles Adopts “Ban the Box” Ordinance Prohibiting Pre-Offer Inquiries about Applicants’ Criminal Histories

June 27, 2016:  Connecticut Governor Signs “Ban-the-Box” Law Prohibiting Questions About Criminal History on Initial Employment Applications

October 27, 2015:  New York City Commission on Human Rights Publishes a Form for the Article 23-A Analysis Required Under the Fair Chance Act

July 13, 2015:  Mayor de Blasio Signs “Ban the Box” Law Prohibiting Pre-Offer Inquiries By New York City Employers Regarding Applicants’ Criminal Histories

August 28, 2014:  New Jersey and Washington, D.C. Enact “Ban the Box” Laws Prohibiting Application Questions About Criminal History