Federal Fair Chance Act

January 10th, 2020 | Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance with Ryan Hannan, Compliance Associate

On December 20, 2019, the President signed S. 1790, the National Defense Authorization Act for Fiscal Year 2020 which included S. 387, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act” or “Act”). The Fair Chance Act, authored by Senators Cory Booker (D-NJ) and Ron Johnson (R-WI), prohibits federal agencies and contractors from requesting applicant disclosures of criminal history record information—both orally and in writing—prior to a conditional offer of employment. The bill received bipartisan support in the Senate and in the House, where it was introduced as H.R. 1076 by Elijah Cummings (D-MD) and Doug Collins (R-GA).

The Fair Chance Act includes the following exceptions for Federal Agencies:

• Positions identified by the Director of the Office of Personnel Management to involve interaction with minors, access to sensitive information, or management of financial transactions (regulations for which are pending from the Director)
• Federal law enforcement officers
• Positions in civil service if consideration of criminal history record information prior to a conditional offer is otherwise required by law
• Positions with determination of eligibility requirements related to access to classified information, national security duties, military acceptance or retention, and positions of public trust

The Fair Chance Act includes the following exceptions for Federal Contractors:

• Positions identified by the Administrator of General Services to involve interaction with minors, access to sensitive information, or management of financial transactions (regulations for which are pending from the Administrator as well as the Secretary of Defense for Defense contractors)
• Positions with access to classified information
• Positions with law enforcement and/or national security duties
• Positions if consideration of criminal history record information prior to a conditional offer is otherwise required by law

The Federal Fair Chance Act requires policies and procedures to be developed to facilitate compliance and assist applicants with submitting complaints. These are respectively to be provided by the Director of the Office of Personnel Management for federal agencies, the Administrator of General Services for federal contractors, and the Secretary of Defense for defense contractors. The Act establishes actions for initial and subsequent violations and clarifies that there is no private right of action. The Director of the Office of Personnel Management is further required to create procedures for appeals related to violations.

The requirements of the Act are effective two years from the date of enactment, with the regulations required from the Director of the Office of Personnel Management due one year from the date of enactment.

The status and full text of S. 387 can be found here.

Do you have further questions? Our in-house compliance experts work with our team of dedicated client success managers to help you create a great environment at your workplace. Start a conversation with us to make the most of our unrivalled service.

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice. Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice concerning any particular legal matter. No reader, or user of this content, should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction. Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.