Federal “Fair Chance Act” Now in Effect

“Ban the Box” style laws are a trend that has grown exponentially over the last decade. In fact, we have covered several laws in multiple jurisdictions, including laws in Louisiana, Philadelphia, Illinois, and more.

The federal government’s own Ban the Box law, the federal “Fair Chance Act,” has recently come into effect. Initially signed into law on December 20, 2019, as part of the National Defense Authorization Act for Fiscal Year 2020, the Fair Chance Act became effective on December 20, 2021.

With some exceptions, the Fair Chance Act prohibits federal executive agencies from inquiring about an applicant’s criminal history record information before making a conditional offer (i.e., an employment offer conditioned on the results of a criminal history inquiry). The Fair Chance Act states 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.

In addition to executive agencies, this prohibition applies to all legislative and judicial agencies.

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

[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 link will take you to the National Defense Authorization Act for Fiscal Year 2020. The Fair Chance Act starts at Section 1121 on Page 408).

While the applicability of the Fair Chance Act is limited to certain federal agencies and entities that have contracts with the federal government, you may still want to review the law with your legal counsel to determine any impacts it may have on you.