Labor & Employment Law Daily National Defense Authorization Act includes federal ‘ban-the-box’ provisions
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Monday, January 6, 2020

National Defense Authorization Act includes federal ‘ban-the-box’ provisions

By Pamela Wolf, J.D.

“Fair Chance Act” provisions bar federal agencies and prime federal contractors from requesting criminal history information from job applicants until after a conditional offer of employment, with certain exceptions.

Tucked inside the National Defense Authorization Act (NDAA), signed by President Trump on December 20, is the “Fair Chance to Compete for Jobs Act of 2019,” also known as the “Fair Chance Act”—a federal “ban-the-box” bill. The bicameral, bipartisan legislation was introduced in February 2019 by the late Representative Elijah Cummings (D-Md.), Congressman Doug Collins (R-Ga.), and Senators Cory Booker (D-N.J.) and Ron Johnson (R-Wis.).

Improving employment prospects. The Fair Chance Act gives formerly incarcerated individuals a fair chance to compete for employment in the federal government and on federal contracts by prohibiting federal agencies and prime federal contractors from requesting criminal history information from job applicants until after they have issued a conditional offer of employment, according to the April 10, 2019 report of Senate Committee on Homeland Security and Governmental Affairs. “By granting individuals with a criminal history the opportunity to compete for federal jobs without first considering their criminal history, the legislation seeks to improve employment prospects for these individuals, thereby reducing recidivism and increasing public safety,” the report explains.

“There are many factors that increase a formerly incarcerated person’s likelihood of being re-incarcerated, and limited employment opportunities are one of the strongest predictors of recidivism,” the report states. “Multiple studies have shown that formerly incarcerated people who maintain steady, legitimate employment are less likely to return to criminal acts upon release from prison.[] “Employment has been found to reduce recidivism by as much as 20 percent among nonviolent offenders.[]”

Fair Chance Act. In Title XI, Subtitle B, of the NDAA (S. 1790), the Fair Chance Act prohibits federal agencies and federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer of employment.

Specifically, the Fair Chance Act’s sponsors said that the legislation would:

  • Prevent the federal government, including the executive, legislative, and judicial branches, from requesting criminal history information from applicants until they reach the conditional offer stage;
  • Prohibit federal contractors from requesting criminal history information from candidates for positions within the scope of federal contracts until the conditional offer stage;
  • Include exceptions for positions related to law enforcement and national security duties, requiring access to classified information, and for which access to criminal history information before the conditional offer stage is required by law; and
  • Require the Bureau of Justice Statistics, in coordination with the U.S. Census Bureau, to issue a report on the employment statistics of formerly incarcerated individuals.

Federal contractors. As to federal contractors, Section 1123 of the NDAA amends Chapter 47 of Title 41 of the U.S. Code to add a new Section 4717 under which, as a condition of receiving a federal contract and receiving payments under the contract, “the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant.”

The prohibition does not apply where consideration of criminal history record information prior to a conditional offer is otherwise required by law. Nor does is apply to:

  • A contract requiring an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or
  • A position that the Secretary of Defense identifies in regulations pursuant to this subsection.

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