The “Fair Chance Act” was signed into law as 2019 came to a close, just one part of the National Defense Authorization Act. It prohibits federal contractors that have openings for positions within the scope of federal contracts, as well as all federal agencies, from inquiring about or otherwise seeking criminal history information from an applicant until after a conditional job offer has been extended.
The Act won’t actually go into effect until December 20, 2021, but it could change the hiring process for some contractors. It “bans the box,” which means that federal contractors would be prohibited from asking applicants about their criminal histories until a contractor extends a conditional job offer. Moreover, it prohibits contractors from even seeking any information about criminal activities from other sources.
“This legislation will remove the steep hurdles that deny individuals who have paid their debt to society from finding a job and allow them to have the dignity of work,” said Senator Cory Booker (D-NJ), a leading supporter of the bill and co-sponsor of companion legislation in the Senate, via a statement.
The bill, which was co-authored by Booker and Senator Ron Johnson (R-Wisconsin.), was included in the NDAA. The late Rep. Elijah E. Cummings (D-MD) led the companion efforts in the House of Representatives.
The goal of this legislation is to provide so-called “second-chance hiring,” making it easier for the recruiting and hiring of individuals with criminal backgrounds. It is meant to address what has been seen as a dilemma for HR and other hiring managers, as it allows an applicant with a criminal history to have the opportunity to be evaluated on their qualifications and not hold HR liable for discriminatory or negligent hiring practices.
The passage of the Act follows efforts at the state and local level. As of July 2019, more than 150 cities and counties, as well as 34 states, have already passed ban-the-box or similar fair chance laws.
Navigating the Law
The Act applies to both government agencies and contractors, and this includes the executive, legislative and judicial branches, including the United States Postal Service. The Act also applies to private-sector companies with federal contracts.
For contractors, violating the Act could be costly, as contractors that are determined to have committed a violation of the Act during the hiring process can face a notice and warning, and subsequent violations could even result in the suspension of payments owed under the pertinent government contract.
There are also notable exceptions to the Act, and this includes positions related to law enforcement and national security duties, as well as positions that require access to classified information. In addition, positions that, by law, require a federal contractor or the federal government to obtain criminal history information before extending a conditional job offer are also exempt from the Act.
“This change in procedures only will impact the ability of individuals with criminal incidents in their background to get past first level screeners, and at least enable them to have an opportunity to explain what had transpired in hopes of alleviating concerns,” said Bradley P. Moss, partner at the Washington, D.C. law office of Mark S. Zaid, P.C
“It does not preclude, however, clearance adjudicators from relying upon the information when making any eligibility determinations, nor would it prohibit an agency or contractor from relying upon it as a basis to ultimately deem the individual unsuitable for employment,” Moss told ClearanceJobs. “It simply ensures that this red mark on the person’s background doesn’t block them from ever even being considered in the first place.”
