Agencies, contractors officially can no longer request applicants’ criminal records when hiring

Agencies and federal contractors are officially no longer allowed to request a job applicant’s criminal history — at least until after they make a conditional job offer.

It’s a practice that many agencies have already adopted, but new final regulations from the Office of Personnel Management broaden the efforts and make it an official rule. OPM first proposed regulations in 2022.

Specifically, OPM’s final regulations detail implementation of the Fair Chance Act, a bill enacted as part of the fiscal 2020 National Defense Authorization Act. The legislation expanded on OPM’s initial “ban the box” policy from 2016.

The goal of OPM’s new regulations is to broaden opportunities in the federal sector to previously incarcerated individuals. It’s also a goal that the Biden administration outlined during Second Chance Month in April. President Joe Biden’s 2021 executive order on diversity, equity, inclusion and accessibility initially gave OPM new authorities to evaluate and expand federal hiring opportunities for formerly incarcerated people.

“If you have the qualifications, skills and willingness to serve the American public, you deserve a fair chance to compete for employment within the federal government,” OPM Director Kiran Ahuja said in a statement Thursday.

The final regulations from OPM are far from the first step agencies have taken to expand “ban the box” opportunities. In 2022, the Justice Department onboarded two formerly incarcerated employees as part of the department’s Second Chance Fellows program. Following suit, the Education Department also plans to launch a fellowship program to bring in its own Second Chance fellows.

In addition to the federal government, 28 states have “ban the box” laws that similarly limit or remove consideration of criminal history in hiring, according to the National Conference of State Legislatures.

Notably, OPM can still approve some exceptions to the new regulations, for example, in cases where agencies are hiring for positions that involve interactions with minors, access to sensitive information or managing financial transactions.

As part of the final regulations, job applicants now have a process for reporting agency violations or otherwise holding accountable federal employees who are in violation of the Fair Chance Act. OPM’s final regulations additionally detail appeal procedures that agency employees can take if an applicant alleges a violation of the Fair Chance Act.

Depending on the severity of the violation, adverse actions can include written warnings, suspensions without pay and civil penalties, OPM said. In more serious cases, employees found to be in violation of the Fair Chance Act can appeal their case to the Merit Systems Protection Board.

Currently, OPM does not have any data to show the impact of existing “ban the box” rules on agency hiring processes. In its proposed regulations last year, OPM asked for public comments on what data the agency should collect to best enforce the regulations.

Several organizations recommended that OPM collect information on how many applicants receive conditional offers, how many of those applicants have conviction records, the number of applicants with records that later had an agency job offer rescinded, the types of convictions for which offers were rescinded, how many applicants with records were hired, the positions they were hired into, and demographic information.

OPM said it’s now formulating a strategy for future data collection in these areas.

Going forward, OPM plans to collaborate with the Chief Diversity Officers Executive Council and the Chief Human Capital Officers (CHCO) Council to help establish agency-specific work plans, leadership groups and metrics to try to increase federal employment opportunities for workers with criminal records.

The final regulations from OPM are scheduled to be published to the Federal Register Sept. 1.

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