2022Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

On April 27, 2022, the U.S. Office of Personnel Management (OPM) – the lead agency in Federal human resources – published proposed regulations in the Federal Register that would implement “Ban the Box” legislation called the Fair Chance Act (FCA) that prohibits federal agencies from asking candidates about criminal records.

The OPM is proposing to amend rules to implement the FCA – which codified the U.S. government’s “Ban the Box” policy – pertaining to when, during the hiring process, an agency may request information typically collected during a background investigation from an applicant for Federal employment.

In addition, the proposed regulations will establish the requirement for the timing of the collection of criminal history information, outline adverse action procedures when an agency has allegedly violated the requirements, and establish appeal procedures. The OPM is seeking comments before the deadline of June 27, 2022.

“The Federal government takes seriously its commitment to draw upon talent from every segment of society. We know that qualified individuals, despite past criminal records, not only deserve a second chance, but also have much to offer the federal government,” OPM Director Kiran A. Ahuja stated in a memo.

“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 in a Fact Sheet about expanding second chance opportunities for ex-offenders.

On December 20, 2019, the “National Defense Authorization Act (NDAA) for Fiscal Year 2020” (S. 1790) was signed into law and included a “Ban the Box” bill called the ‘‘Fair Chance to Compete for Jobs Act of 2019’’ or ‘‘Fair Chance Act (FCA)’’ that would take effect two years later on December 20, 2021. 

The FCA prohibits most Federal agencies and contractors from asking about arrest and conviction history on job applications and delays background checks until a conditional job offer has been extended to applicants. The FCA does not apply to certain positions such as Federal law enforcement or national security positions. 

“Ban the Box” is a fast-growing nationwide movement that seeks to advance opportunities for job applicants with criminal records. As of May 2022, 37 states and more than 150 cities and counties have adopted some type of “Ban the Box” legislation, according to statistics from the National Employment Law Project (NELP).

Employment Screening Resources (ESR) – a service offering of ClearStar – offers a white paper titled “Ban the Box Now More the Rule than Exception for Employers when Screening,” a “Ban the Box Resource Guide for States, Counties, and Cities,” and a Ban the Box Resource Page. To learn more, contact ESR today.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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