Civil-rights groups across the globe have long advocated for the removal of “checkboxes” on job applications that require applicants to disclose prior convictions. In the United States, the EEOC has often expressed concerns that screening out all applicants with a prior conviction (or even a prior felony conviction) would tend to have a disparate impact on minority or other protected groups. Many states (including Kansas) have laws which ban such inquiries for public employers, but only a handful of states (such as California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and cities (including Columbia and Kansas City, Missouri) have enacted similar laws for private employers.
Congress included “ban the box” legislation known as the “Fair Chance Act” for federal government contractors and subcontractors within the “National Defense Authorization Act for Fiscal Year 2020,” which then-President Donald Trump signed into law on December 20, 2019. That law (which is codified at 41 U.S.C. § 4174) was slated to take effect two years after becoming law or, in other words, on December 20, 2021.
As it applies to employers, this law prohibits federal contractors from asking (orally or in writing) for any criminal history record information regarding applicants before extending a conditional offer of employment. Criminal history record information includes, for example, information about an individual’s arrests, indictments, criminal charges, or dispositions thereof, as well as any sentencing, ongoing supervision, or release. The law does not prohibit employers from running a criminal background check on applicants to whom they have extended a conditional offer of employment.
The Fair Chance Act makes some exceptions. Where another law requires consideration of criminal history record information prior to making a conditional offer and for positions with that require access to classified information that includes sensitive law enforcement or other national security duties, pre-offer questions regarding criminal history are permitted. The law also directed the Administrator of General Services to issue regulations that would identify other positions (based on, for example, an employee’s interaction with minors, access to sensitive information, or management of financial transactions) that would be exempt from the legislation by April 2021, but those regulations have yet to be promulgated.
Federal contractors who violate the Fair Chance Act will be issued a written warning on a first violation and will be subject to further actions, depending on the severity, which could include suspension of any payments under the contract until compliance is demonstrated.
Federal contractors should review their existing application forms and interview process and train employees involved in interviewing candidates to ensure compliance with this law.