OPM’s Final Regulations Prohibit Criminal History Disclosure

In an effort to promote fairness and inclusivity in federal hiring practices, the U.S. Office of Personnel Management (OPM) has announced its final regulations to implement the Fair Chance to Compete for Jobs Act of 2019, commonly known as the Fair Chance Act. These regulations mark a milestone in ensuring that individuals with criminal history records are provided a fair opportunity to compete for employment within the federal government and its contractor organizations.

The Fair Chance Act, enacted in 2019, laid the foundation for these regulations by prohibiting federal agencies and contractors from requesting an applicant’s criminal history information until a conditional offer of employment has been made. The Fair Chance Act expands upon the existing “Ban the Box” rule, implemented in 2016. The intent behind this law is clear – every applicant deserves a fair chance at employment, and the qualifications, skills, and willingness to serve the American public should be the primary criteria as federal agencies and contractors make employment decisions.

The Fair Chance Act provides specific guidelines on the types of inquiries not allowed and offers exceptions to the rule. Importantly, it mandates that OPM consider certain factors, such as positions involving interactions with minors, access to sensitive information, or financial transaction management, when making additional exceptions.

One of the notable aspects of the final regulations is the establishment of a complaint process for applicants. This process empowers individuals to report any violations of the Fair Chance Act by federal employees during the hiring process. Such accountability ensures that the spirit of the law is upheld and applicants are treated with dignity and respect throughout the hiring process.

The regulations are set to take effect on October 2, 2023, signaling a pivotal moment for federal agencies and contractors. It is essential for all stakeholders to understand the key provisions and their implications:

• Timing of Inquiry & Assessment: Criminal history information cannot be requested or assessed until after a conditional offer of employment is made unless mandated by law. This provision allows applicants to showcase their qualifications before any potential biases associated with criminal history come into play. Federal agencies and contractors can decline a job candidate based on their criminal history only after their qualifications have been fairly assessed.
• Complaints & Alleged Violations: The regulations require that a mechanism to file complaints is established and outlines procedures for cases where it is asserted that an agency employee has violated the Fair Chance Act requirements, namely that a criminal inquiry or assessment was made before a conditional offer of employment. These procedures ensure that any potential violations are addressed appropriately.
• Penalties for Violations: The Fair Chance Act establishes minimum requirements for penalties in case of violations. These penalties can only be imposed after providing the accused Federal employee with notice and the opportunity for a hearing, ensuring a fair process.
• Appeal: In the event of a determination adverse to a federal employee, appeal procedures are available. Appeals safeguard the rights of federal employees while upholding the principles of fairness and justice.
• Exceptions: It’s important to note that while the Fair Chance Act and its accompanying regulations are designed to promote fair hiring practices, some exceptions exist. The Act identifies certain positions to which the prohibition on requesting criminal history information before a conditional offer does not apply. Roles expressly named in the regulation include access to classified information, sensitive national security duties, military service, and recruitment of Federal law enforcement officers. The regulation notes that these exceptions are important for roles where a background check is a legitimate and necessary part of the hiring process.

In consideration of these regulations, federal agencies and contractors should take proactive steps to ensure compliance and foster inclusivity in their hiring practices. Impacted organizations should review their hiring policies and procedures to ensure they align with the new regulations. This may involve revising application and interview processes to reflect the prohibition on requesting criminal history information upfront. Training programs for hiring managers and HR staff should be updated to incorporate the new regulations. Education is critical to avoiding unintentional violations and promoting a culture of compliance.

OPM’s final regulations on criminal history disclosure represent a step toward creating a more inclusive federal workforce. As Kiran Ahuja, OPM Director, said in a statement, “America is a nation of second chances and every person deserves to be treated with dignity and respect.” Federal agencies and contractors have a critical role in ensuring the effective implementation of these regulations, fostering a fair and just employment environment for all who are qualified and want to serve the American public.