Federal Contractors Ban the Box Coming Soon

In case you forgot – on December 17, 2019, the Senate passed, and the President signed the National Defense Authorization Act (“NDAA”) for Fiscal Year 2020. Within the NDAA, the government enacted the Fair Chance to Compete for Jobs Act of 2019 (“Fair Chance Act”) prohibiting federal agencies and federal contractors from requesting criminal background information from job applicants prior to extending an offer, with a few exceptions.

The Fair Chance Act goes into effect on December 20, 2021.

Some items to note from the Fair Chance Act:

  • The Act is a federal extension of the “ban-the-box” laws that have been enacted in various states and localities.
  • Federal contractors may not request information relating to criminal history, verbally or in writing, for positions “related to work under [the] contract” before the contractor extends a conditional offer to the applicant.

The three exceptions:

  1. If consideration of criminal history record information prior to a conditional offer is required by law;
  2. The position at issue would have access to classified information or have sensitive law enforcement or national security duties; or
  3. The position is identified as excepted by the Administrator of General Services (or, for defense contracts, by the Secretary of Defense). *Positions will be identified by the Administrator of General Services and the Secretary of Defense by April 2021.

Possible compliance violations:

  • The Fair Chance Act outlines progressive penalties for violations, up to and including suspension of payment for a repeated offense.
  • A first violation carries a written warning followed by a notice to comply. 
  • Subsequent violations include requiring the contractor to provide assurances that they are coming into compliance and/or suspension of payment on the contract until compliance is demonstrated.

Contractors should follow best practices to ensure they are compliant with current laws and proactively prepare for the Fair Chance Act. The current best practice is to refrain from asking about criminal convictions until a conditional offer has been made, given state law requirements and the Equal Employment Opportunity Commission’s focus on employment actions that result in a disparate impact to minority applicants.

This information has been prepared by Validity Screening Solutions for informational purposes only and is not legal advice. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.