Obama Proposes Delaying Criminal History Screens in Federal Hiring

By Roy Maurer May 2, 2016

The White House proposed new regulations May 2 that would prohibit federal agencies from asking about a job applicant’s criminal history until after a conditional job offer has been made.

The U.S. Office of Personnel Management (OPM) rule would ban hiring managers from using forms that request screening information typically collected during a background investigation until later in the hiring process, with some exceptions. The public will have until July 1, 2016, to submit comments before a final rule is issued.

“The intended effect of this proposal is to better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for federal employment,” the agency said.

President Barack Obama directed OPM on Nov. 2, 2015, to remove from federal job application forms the check box requiring applicants to indicate if they have a criminal history and to delay criminal history inquiries until later in the hiring process—a practice that is commonly known as “banning the box.”

Current regulations allow agencies to administer the Optional Form 306 to applicants as part of an advance screening process. The form contains a variety of questions about an applicant’s background, including several questions about an applicant’s criminal history.

OPM Acting Director Beth Cobert said in a press release that the proposed standards are already effectively practiced in a number of federal agencies. “The proposed rule takes the important step to formalize, expand and codify this best practice,” she said. Cobert noted that the regulation does not apply to excepted service positions, which include many federal intelligence and law enforcement jobs.

“There are certain times when an agency might be justified in disqualifying an applicant with criminal history, or collecting information on their background, earlier in the process,” she said. OPM will set up a mechanism for agencies to request exceptions to be granted on a case-by-case basis. “These exceptions could be granted either by individual position or by class of positions, depending on the specifics of the case,” Cobert said. For example, cases could include certain law enforcement jobs that require the ability to testify in court or jobs where applicants undergo extensive and costly training before they are offered a job.

“In any event, the applicant would have notice of the process, an opportunity to rebut any issues that arose and the ability to appeal any adverse suitability action to the Merit Systems Protection Board,” she said.

Ban-the-Box Momentum

A nationwide push to ban the box has grown exponentially in recent years. Currently, 23 states have adopted a policy, at least for jobs in the public sector: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia and Wisconsin. Seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have also removed the criminal history check box on job applications for private employers.

Melissa Sorenson, executive director of the National Association of Professional Background Screeners (NAPBS) said that her organization commends the federal government for its efforts to reintegrate those with criminal histories into the workforce. “In its capacity as an employer, the federal government is best positioned to identify appropriate changes to its hiring process that allow for reintegration while maintaining a process that mitigates risk.”  

Sorenson explained that “delaying the box” to a later phase in the hiring process is “one way employers can demonstrate their support of reintegration while continuing to verify an individual’s background by asking about criminal history later in the process and completing a background check to help identify that the individual is an appropriate fit for the position.”

NAPBS is concerned, however, with the number of ban-the-box bills introduced throughout the country and the many variances contained within them. “The sheer volume of ban-the-box bills that continue to be pushed through jurisdictions at all levels of state and municipal government in as many formats and with as many varying requirements as there are jurisdictions is problematic in that not only does it delay the hiring process but it makes compliance a near impossibility for employers operating in multiple jurisdictions,” Sorenson said.

Federal Contractors Next?

Covering federal contractors would greatly extend the impact of the federal policy, given that nearly 1 in 4 U.S. workers is employed either by a federal contractor, a subcontractor or the federal government, said National Employment Law Project (NELP) Executive Director Christine Owens.

The White House supports extending ban-the-box policies to cover the hiring practices of federal contractors.

“Ban the box for federal agencies is an initial step, but we are urging the administration to cover federal contractors and to adopt fair-chance hiring principles, which would incorporate EEOC [Equal Employment Opportunity Commission] guidelines,” said Michelle Natividad Rodriguez, a senior staff attorney at NELP, based in Oakland, Calif.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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