If you are a federal contractor, you need to be aware of a new law.  If not, this serves to remind us all of the growing trend in favor of “ban the box” legislation.

In December 2019, President Trump signed into law the “National Defense Authorization Act for Fiscal Year 2020.”  Tucked into that law is the “Fair Chance to Compete for Jobs Act of 2019” otherwise known as the “Fair Chance Act.”  This law applies to federal agencies as well as to defense contractors (neither of which will be defined in this article).

Generally speaking, if you submit a bid to a federal executive agency for work, you will be required to comply with this law.  When the law (eventually) goes into effect, as a condition of submitting a bid and getting a contract, you

may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before [you] extend[] a conditional offer to the applicant.

In other words, federal contractors must “ban the box” for applicants who will work under federal contracts.  This law will not apply if another law requires you consider criminal history and it will not apply if the contract “requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties.”  Additionally, the General Services Administration has been charged with drafting regulations, one of which will be to identify positions that will be exempt from this rule; e.g., positions involving interaction with minors, access to sensitive or financial information, etc.  However, we do not expect these regulations to be issued for at least one year.

What does it mean to extend a “conditional offer?”  The law defines a conditional offer as “an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.”

The new law also outlines a complaint procedure and penalties for an applicant who believes they have been harmed by a federal contractor’s violation of this law.

This law will not go into effect for two years.  Why discuss it now?  If you are a federal contractor, you know the lead time can be long.  You would be wise to plan ahead.  December 2022 will come quickly.  Also, you will want to be alert for information about the regulations, which should further explain your rights and obligations.  They may come later in 2021.  Even if they do not, by December 2022, you will be required to comply with the law.

Ban the box efforts are already underway in several states; about a dozen states have passed laws on the subject affecting private employers.  Oklahoma does not have such a law, but former Governor Fallin signed a 2016 Executive Order “banning the box” as to Oklahoma state agency employees.

The trend is clear.  Restricting employment based upon a person checking a box about the existence of a criminal history – without a more thorough consideration of the totality of the circumstances – is becoming a thing of the past.  Regardless of whether your business will be subject to the Fair Chance Act, you may want to (re)consider your approach to the criminal history of your applicant pool.

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