Understanding the Fair Chance to Compete for Jobs Act

The Fair Chance to Compete for Jobs Act, also known as the "Ban the Box" law, aims to provide individuals with a criminal record a fair chance at employment by prohibiting federal contractors and agencies from inquiring about criminal history until a conditional job offer is made. Understanding and complying with this law not only helps organizations adhere to legal requirements but also promotes a more inclusive and diverse workforce.

In this article, we’ll help your organization adjust to updated regulations regarding requests for candidate information, controlling automated systems, documenting pre-hiring procedures, and informing candidates of their rights. We’ll also discuss the steps your organization can take to ensure lasting compliance through HR training, updating application/interviewing policies, and other proactive steps that support fair hiring practices.

Fair Chance to Compete for Jobs Act - Overview

The Fair Chance to Compete for Jobs Act of 2019 was officially implemented on October 3, 2023 after the Office of Personnel Management (OPM) issued a final rule to make its regulations effective. These regulations – specifically those found in 5 Code of Federal Regulations (C.F.R.) Part 920 – prohibit federal agencies and contractors from requiring a candidate to disclose any criminal history record information prior to a conditional offer of employment. 

The 2019 Fair Chance Act expands opportunities for candidates with a criminal history to be fairly considered and evaluated during the hiring process, simultaneously using Equal Employment Opportunity Commission (EOOC) and Fair Credit Reporting Act (FCRA) guidelines to ensure inclusive hiring policies. Both federal agencies and contractors can still deny employment to a job candidate based on criminal history that poses a genuine threat to other employees or the general public. However, this may only occur after a job candidate’s qualifications have been thoroughly and fairly assessed.

Of course, within the Act, there are some exceptions regarding pre-employment criminal history record requests, especially for jobs that are considered sensitive in nature. As a result, candidates may be asked about their criminal history prior to a conditional offer of employment under the following circumstances:

• If they will have access to classified information or require a security clearance
• If they will work in a federal law enforcement position
• If they seek to be accepted into or retained in the armed forces
• If they seek to work or already work as a dual-status military technician

For all other circumstances and categories of employment, the Act’s central restriction on requesting criminal information history before a conditional offer of employment still applies. The Office of Personnel Management (OPM) no longer accepts requests for exceptions for any positions/circumstances not listed above. 

Updated Regulations and Best Practices

With the relatively recent activation of the Fair Chance to Compete for Jobs Act, the OPM has reiterated that federal agencies are forbidden to request criminal history information prior to receiving an application, upon receipt of a candidate’s application, and at any stage before, during, or after a job interview. This ban includes employer inquiries made in verbal or written form.

Additionally, as more agencies utilize automated systems to post job opportunities and process applications, the OPM and EEOC recommend placing “proper controls” to mitigate the risk that automated systems collect criminal history information at a stage of the hiring process that violates the Fair Chance to Compete for Jobs Act.

To inform candidates, federal agencies are also required to publicly announce (in job announcements and elsewhere) the Fair Chance Act’s ban on criminal history information requests prior to a conditional offer of employment. The OPM encourages agencies to adopt more stringent recordkeeping processes to demonstrate when communications regarding a conditional job offer were made and when criminal history information was collected. Although agencies are required to give detailed information and instructions in the event that an applicant wishes to file a complaint, this emphasis on documentation and recordkeeping during the hiring process can help employers establish an objective source of truth regarding when a job offer was extended and when criminal history information requests were made.

Additional Steps Towards Employment Law Compliance

Employers that are accused of violating the Fair Chance to Compete Act may be obligated to participate in a hearing that could lead to a range of financial and operational penalties, as well as reputational harm. 

We encourage federal agencies and contractors to proactively address this risk and encourage more inclusive hiring by taking all of the following steps:

• Review all hiring policies and procedures in light of new Fair Chance to Compete for Jobs Act regulations
• Adjust job posting policies to ensure protections offered by the Fair Chance Act are made available and visible to all job applicants
• Review and revise all application and interview processes (and materials) to ensure alignment with Fair Chance Act prohibitions on criminal history information requests made in verbal or written form prior to a conditional offer of employment
• Update training programs for your organization’s HR personnel and hiring managers to ensure new regulations are honored, automated systems adhere to criminal background check timelines, and applicants remain informed of their rights at every stage of the hiring process

Establishing Long-Term Compliance and Fair Hiring with The Orsus Group

Ensure your hiring practices comply with the Fair Chance to Compete for Jobs Act. Contact The Orsus Group today to learn how our compliance solutions and training programs can help you implement fair and inclusive hiring practices while mitigating legal risks and protecting your workforce.