OPM to broaden “ban the box” opportunities for formerly incarcerated workers

Agencies can expect to update recruitment processes to open doors for formerly incarcerated individuals. Applicants with criminal records will get more opportunities to join the federal workforce and more guidance on how to land government jobs.

The Office of Personnel Management wants to add more positions under the umbrella for which agencies must delay questions about criminal history. For most federal jobs, agencies have to give an applicant a conditional employment offer before inquiring about previous incarcerations, according to OPM’s April 26 proposal.

Exceptions for the rule exist for those with security clearances, those with national security duties and those applying for jobs in law enforcement or the armed forces.

The proposed guidance follows the passage of the Fair Chance Act, also known as the “ban the box” bill, which went into effect on Dec. 20, 2021, as part of the National Defense Authorization Act of 2020. In an effort to prevent agencies from disqualifying formerly incarcerated individuals from federal jobs, the legislation delayed when agencies can ask about an applicant’s criminal history until after making a conditional employment offer.

OPM now wants to expand the positions covered by the government’s “ban the box” policy to include all appointments in the executive branch. That covers the competitive service, the excepted service and the Senior Executive Service.

The agency previously revised the rules around the timeline for disclosing criminal records back in 2016, which initially delayed criminal history inquiries to later stages of the hiring process.

“We know that qualified individuals, despite past criminal records, not only deserve a second chance, but also have much to offer the federal government,” OPM Director Kiran Ahuja stated in a memo on April 25.

Many legislators support the proposed OPM guidance, including Sen. Rob Portman (R-Ohio), ranking member for the Homeland Security and Governmental Affairs Committee and co-sponsor of the Fair Chance Act.

The Fair Chance Act “helps increase federal hiring of formerly incarcerated individuals who have paid their debt to society,” Portman’s spokesperson Kylie Nolan told Federal News Network. “The OPM guidance provides more transparency regarding federal hiring practices and useful guidance to individuals seeking federal jobs.”

The White House lauded OPM’s proposed guidance in an April 26 announcement highlighting whole-of-government actions as part of Second Chance Month.

“Once enacted, these regulations will expand the positions covered by the federal government’s ‘ban the box’ policy, which delays inquiries into an applicant’s criminal history a conditional offer has been made,” the White House stated. “The regulations also create new procedures that outline due process and accountability steps for hiring officials who are alleged to have violated the ‘ban the box’ procedures.”

Along with the proposed OPM guidance, the White House highlighted more than 20 actions across a dozen agencies, including investing in job training in federal prisons and automating information among agencies to quickly restore benefits for previously incarcerated veterans.

Additionally, the Labor Department announced solicitations for grants for $140 million to advance job opportunities for previously incarcerated individuals.

The Equal Employment Opportunity Commission also launched a new webpage compiling resources on the use of arrest and conviction records in employment decisions.

“The actions we’re taking today will have a real impact for someone trying to land a job, find a safe and affordable place to live with their children and get back on their feet,” Domestic Policy Council Director Susan Rice said at an April 26 White House roundtable.

To give additional support to previously incarcerated individuals, OPM is offering briefings this week to help agencies expand their applicant pools. On April 28, OPM will host a training webinar to help federal groups recruit and hire applicants who were formerly incarcerated. The agency will host interactive sessions between federal human resources workers and applicants with criminal records.

In a new guide, OPM also wrote details to assist candidates through the entire federal job application process.

“It offers helpful information on navigating USAJOBS, writing a resume for the greatest impact when applying for federal employment and preparing for and participating in interviews,” Ahuja stated.

OPM recommended sharing volunteer, community or freelance work experience if a candidate has gaps in employment. The agency additionally stated that during the application process, candidates may reference experiences from their time in incarceration if they choose.

But, interviewers are not allowed to directly ask questions about the criminal history of an applicant.

Under the proposal, job applicants can report any violations of the rule to OPM, which will penalize federal employees with a written warning, fine or suspension, based on the number of violations.

Partnering with community-based organizations will help OPM implement the policy, Ahuja stated. OPM’s proposed guidance also gives applicants information about hiring authorities that can help those who have been previously incarcerated.

OPM is asking for feedback on its proposal by June 27.

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