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Federal Fair Chance Act

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

Federal Fair Chance Act

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.

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This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.