Employment Law Daily OPM proposal would ban the box in federal employment
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Tuesday, May 3, 2016

OPM proposal would ban the box in federal employment

By Pamela Wolf, J.D. The Office of Personnel Management has proposed to amend its regulations so that federal agencies will be required to defer inquiries about an applicant’s criminal history until a conditional offer of employment has been extended—jumping aboard the continuing "ban-the-box" trend in state and local government employment. The OPM’s proposed rule and request for comments was published in the Federal Register on Monday, May 2. Giving everyone a fair chance. The proposed change, according to OPM, will promote compliance with Merit System Principles as well as the goal of the Federal Interagency Reentry Council and the President’s Memorandum of January 31, 2014, Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own. The proposal is aimed at better ensuring that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for federal employment. Criminal history inquiries. OPM noted that criminal conduct is one of several criteria that federal agencies consider while making suitability determinations. Many agencies administer the Optional Form (OF) 306, "Declaration for Federal Employment," to applicants in order to collect information about an applicant’s history as an advance screening process before the suitability investigation required for appointment in a covered position. Among the questions in the OF- 306 are several about an applicant’s criminal history, including past convictions or current arrests that were not yet the subject of a final disposition. Proposed changes. The proposed rule would amend 5 C.F.R. parts 330 and 731 to require that unless an exception has been granted by OPM, federal agencies cannot begin to collect background information unless a conditional offer of employment has been extended to the applicant. This change, according to OPM, would limit the flexibility currently granted to federal agencies to administer the OF-306, and any other form of inquiry into an applicant’s background, at any time during the hiring process. The proposed rule also provides a mechanism for federal agencies to request exceptions from the prohibition on background inquiries where there are legitimate, specifically job-related reasons for disqualifying candidates based on criminal history. Comments. Comments must be received on or before 60 days following publication of the OPM’s notice of proposed rulemaking in the Federal Register. Instructions for submitting comments are detailed in the notice.

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