OPM Issues Final Rule Implementing Fair Chance to Compete for Jobs Act
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Written By Digital Content Editor Thomas Ahearn
On September 1, 2023, the Office of Personnel Management (OPM) issued a final rule implementing the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) that prohibits Federal agencies from requesting that an applicant for Federal employment disclose criminal history record information before a conditional job offer.
The new regulations – which take effect October 2, 2023 – establish the requirement for the timing of collection of criminal history information and for governing complaint procedures under which an applicant for a job in the civil service may submit a complaint related to the timing of the collection of criminal history information.
The final rule also outlines adverse action procedures that apply when it is alleged that an agency employee violated the requirements and appeal procedures available from a determination by the OPM adverse to the Federal employee. Nothing in this rule shall be read in derogation of individual rights under Title VII.
In addition, it also requires the OPM to establish procedures for submitting a complaint relating to compliance with the Fair Chance Act, establishes minimum penalties and procedures to be followed before a penalty is assessed, and requires the OPM to establish appeal procedures for a determination adverse to the employee.
The Fair Chance Act identifies some positions to which the prohibition shall not apply. Provisions of the Fair Chance Act were incorporated into the “National Defense Authorization Act (NDAA) for Fiscal Year 2020” (S. 1790) which was signed into law in December 2019. The complete final rule from the OPM is available here.
In December 2016, the OPM issued a final rule that revised its regulations pertaining to when, during the hiring process, a hiring agency can request information typically collected during a background investigation from an applicant for Federal employment. The changes were otherwise known as “Ban the Box” rules.
“Ban the Box” is the name of a nationwide movement that seeks to advance opportunities for job applicants with criminal records by eliminating any inquiry into the criminal history on initial job applications and delaying the question until later in the hiring process after their knowledge, skills, and abilities are revealed.
“Ban the Box” – which refers to the box on job applications that applicants are asked to check if they have a criminal record – is growing rapidly. As of 2023, 37 states and more than 150 cities and counties have adopted “Ban the Box” legislation, according to a guide from the National Employment Law Project (NELP).
Employment Screening Resources (ESR) is a service offering of ClearStar, a leading Human Resources technology company specializing in background checks, drug testing, and occupational health screening. ClearStar offers an interactive map and a white paper to help with “Ban the Box” compliance. To learn more, contact ClearStar.
NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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