The Office of Personnel Management (OPM) released draft regulations last week implementing the Fair Chance Act (PL 116–92 Sec. 1124), which restricts the right of federal agencies to probe applicants for their criminal records. during the interview process. The OPM is seeking comments by the June 27, 2022 deadline on the proposed rule, which was included in the Federal Register Wednesday.
The Fair Chance Act codifies the “ban the box” policy that requires all agencies to only ask federal applicants who have accepted a conditional job offer whether they have a criminal history, an administrative reform already in place in 2016.
The OPM’s proposed rule reaffirms its previous regulations and clarifies which positions are exempt from asking candidates about their criminal history. Additionally, it extends the policy to federal contractors and adds an enforcement element.
“We know that qualified individuals, despite their criminal records, not only deserve a second chance, but also have a lot to offer the federal government,” OPM Director Kiran Ahuja said in a memo.
If agencies wish to exempt jobs from the policy, they must submit their requests to the OPM, which will assess and grant them if necessary. The same is true if a position involves access to sensitive information, national security responsibilities, or federal law enforcement duties.
If a candidate is inappropriately questioned about their criminal history, they have the right to file a complaint with the OPM, which can impose penalties on federal employees who violate the law, including written warnings, suspensions without pay and civil monetary penalties. The consequences would not be covered by policies governing adverse staff actions, although an employee can appeal to the Merit Systems Protection Board (MSPB) if they have been suspended for more than 14 days.
The White House welcomed the proposed guidance, emphasizing actions taken across government as part of Second Chance Month, an initiative designed to reduce the stigma associated with criminal convictions and give those pardoned a Second chance.
“Once enacted, these regulations will expand the positions covered by the federal government’s no-box policy, which delays criminal background investigations of a candidate if a conditional offer has been made,” the White House said. . “The settlement also creates new procedures that outline the due process and accountability steps for hiring officials who allegedly violated box blackout procedures.”
Sen. Rob Portman (R-OH), a senior member of the Homeland Security and Governmental Affairs Committee and co-sponsor of the Fair Chance Act, also expressed support for the proposed directions.
“The Fair Chance Act helps increase federal employment of formerly incarcerated people who have paid their debt to society. The OPM guidelines provide more transparency regarding federal hiring practices and provide helpful guidance to those seeking federal employment,” said Kylie Nolan, Senator Portman’s deputy communications director.