OPM Issues Final ‘Ban-the-Box’ Regulations

Roy Maurer By Roy Maurer September 5, 2023

​The Office of Personnel Management (OPM) released final "ban-the-box" regulations limiting federal agencies from asking about a job applicant's criminal history until a conditional job offer is made.

The regulations—which take effect Oct. 2—implement the Fair Chance Act for federal government employers. The law is meant to help job applicants with arrest or conviction records to compete fairly for employment in federal agencies and with federal contractors.

The regulations cement what has been happening in practice already. The Fair Chance Act supersedes similar ban-the-box regulations enacted by OPM in 2017.

We've rounded up articles and resources from SHRM Online and other sources on the news.

The Law’s Provisions

The law bans federal agencies and federal contractors from requesting that a job applicant disclose their criminal history information prior to a conditional offer of employment.

Exceptions to the law include positions related to law enforcement and national security duties, jobs requiring access to classified information, and roles required by law to reveal criminal history information before the conditional-offer stage.

Agencies may request exceptions from OPM on a case-by-case basis and can still object to or pass over a candidate based on criminal history, but only after the candidate has been assessed on other factors and a conditional employment offer has been made.

The OPM regulations also establish a complaint process for job applicants to allege violations of the Fair Chance Act and outline adverse action procedures that apply when violations have occurred.  

(Office of Personnel Management)

Law Covers Federal Contractors

Companion regulations from the Federal Acquisition Regulatory Council affecting government contractors have not been released yet but are expected to follow the OPM provisions. Experts said the law won't require major changes for many contractors because they already navigate a patchwork of similar state laws across the U.S. Numerous states and localities bar employers from requiring job applicants to disclose a criminal record before a job offer has been extended.

(SHRM Online)

Approved by Lawmakers

A bipartisan group of lawmakers supported the Fair Chance Act as it made its way through Congress. It was signed into law on Dec. 20, 2019, and took effect on Dec. 20, 2021.

(SHRM Online)

Congress Advocates for Second-Chance Hiring

Congressional members from both sides of the aisle have introduced additional second-chance hiring bills and have formed the Bipartisan Second Chance Task Force to help formerly incarcerated workers obtain jobs.

(SHRM Online)

The Benefits of Second-Chance Hiring

More than 600,000 people exit prison each year in the U.S. But more than half of these returning citizens are unemployed a year later, increasing their risk of recidivism. Second-chance hiring reduces that risk while boosting employment rates.

(SHRM Online)



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