Federal “Fair Chance Act” Enacted

We have previously covered “Ban the Box” laws in multiple jurisdictions, including both statewide laws, such as the law in Colorado, and municipal ordinances, including Waterloo, Iowa, Columbia, South Carolina, and Saint Louis, Missouri.

The federal government has recently passed legislation implementing its own Ban the Box style law. The federal “Fair Chance Act” was signed into law on December 20, 2019 as part of the National Defense Authorization Act for Fiscal Year 2020.

The Fair Chance Act prohibits, with some exceptions, federal executive agencies from inquiring about an applicant’s criminal history record information prior to making a conditional offer of employment i.e. an employment offer conditioned on the results of a criminal history inquiry, stating that:

[A]n employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (Office of Personnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant.

This prohibition extends to all legislative and judicial agencies as well as executive agencies.

The Fair Chance Act also extends the restrictions on criminal history record information inquiries to federal contractors, with some exceptions. According to the act,

[A]s a condition of receiving a Federal contract and receiving payments under such contract … 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.

To read the full text of the Fair Chance Act, click here. The Fair Chance Act starts at Section 1121 on page 408.

The Fair Chance Act will become effective in December, 2021. When it becomes effective, the Fair Chance Act will only apply to federal agencies as outlined above and entities that have contracts with the federal government. You may want to review this proposed law with your legal counsel to determine if it applies to you.