The U.S. Office of Personnel Management (OPM) proposed initial regulations to implement the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act). The proposed regulations would apply to federal employees and will serve as the model for forthcoming regulations governing how and when federal contractors may consider the criminal histories of applicants and employees.
Background on the Law and Regulatory Process
As McGuireWoods previously reported, the Fair Chance Act, Section 1123 of the National Defense Authorization Act for Fiscal Year 2020, was signed into law on Dec. 20, 2019, and took effect on Dec. 20, 2021. The law bans civilian and defense executive agencies from both awarding federal contracts and releasing payment to any contractor that violates the statutory requirements.
Specifically, as a condition of either a contract award or receiving payment on a contract, government contractors may not request a job applicant on the contract to disclose his or her criminal history information prior to the contractor’s extension of a conditional offer of employment. This restriction applies to criminal background requests made verbally and in writing. The Fair Chance Act provides two exceptions to the restriction, namely when: (1) consideration of an applicant’s criminal history is required by law; or (2) the individual, if hired, will have access to classified information or hold sensitive law enforcement or national security duties.
The statutory text left many...
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