New Paid Parental Leave and 'Ban-the-Box' Laws Apply to Federal Employers

Many federal employees will soon be eligible for paid parental leave under a defense spending bill signed by President Donald Trump on Dec. 20.

"Parents will no longer need to choose between being home with their new child or their paychecks," said Rep. Carolyn Maloney, D-New York, who supports legislation expanding paid leave rights.

The bill also contained a ban-the-box law prohibiting federal agencies and federal contractors from asking job applicants about criminal convictions until after a conditional job offer has been made.

The National Employment Law Project, a worker-advocacy group that supports ban-the-box legislation, estimates that 700,000 job applicants with criminal records "will now have a fairer chance at federal agency and contractor employment."

The Society for Human Resource Management believes that the U.S. must have a 21st century workplace flexibility policy that works for employers and employees alike, helping them meet work/life and organizational needs.

Paid Parental Leave

Military service members already may take 12 weeks of paid leave to care for a new child, and, under this bill, civilian federal workers may also take paid leave to care for a new baby after birth, adoption or the start of foster care.

The Family and Medical Leave Act (FMLA) requires large organizations to offer employees up to 12 weeks of unpaid leave to care for a new child, sick relative or their own illness. Although a growing number of states have passed or are considering paid family leave laws, there is no nationwide equivalent.

"This is an area where the U.S. federal laws are not aligned with the laws many of our international employers are accustomed to, and we are definitely seeing a swing in the direction of increasing paid leave entitlements," said Cheryl Behymer, an attorney with Fisher Phillips in Columbia, S.C.

But the new law for federal employees doesn't cover paid leave for medical reasons or employees outside the federal government. "There's still more work to do," said Rep. Gerry Connolly, D-Va., at a recent House of Representatives committee hearing. "While we've secured paid parental leave for federal employees, we must continue to fight for paid family caregiving leave and leave to care for one's own medical needs."

[SHRM members-only toolkit: Managing Family and Medical Leave]

Charles Thompson, an attorney with Ogletree Deakins in San Francisco, thinks employers can expect further state—not federal—revisions and expansions of paid family leave laws in 2020, primarily in Democratic-leaning states. A handful of states already provide for paid family leave, and more are in the process of implementing programs.

Criminal Background Checks

The defense spending bill also contained a ban-the-box law called the Fair Chance Act, which is the first major criminal justice bill passed since the First Step Act was signed into law in 2018. The new law, which applies to both federal employers and federal contractors, will:

• Ban the federal government from requesting job applicants' criminal history until a conditional offer is made.
• Bar federal contractors from requesting criminal background information—from job applicants for positions within the scope of federal contracts—until a conditional offer is made.
• Make exceptions for positions in law enforcement and national security, positions that require access to classified information, and positions that legally require earlier access to criminal information.
• Direct the Bureau of Justice Statistics to work with the U.S. Census Bureau to issue a report on employment statistics for formerly incarcerated people.

"The law does not do anything particularly innovative," Thompson noted. Rather, the federal ban-the-box law simply applies measures that state and local jurisdictions have applied for years, he said.

More than 30 states and 150 cities and counties require ban-the-box policies for public-sector jobs, and a few state and local laws apply to private-sector employers.

Many employers also have already been following the Equal Employment Opportunity Commission's guidance on using an individualized approach to background checks, Behymer observed.

The EEOC has said that through an individualized assessment—instead of a "blanket" policy barring all applicants with criminal histories—employers can determine whether a criminal record is specifically relevant for the position.

"Requiring employers to wait until the conditional offer stage to initiate a background check is likely less burdensome to the employer than the procedures they have been using subsequent to the EEOC's guidance," Behymer said. 

Thompson predicted that state and local jurisdictions will likely continue to adopt ban-the-box legislation and ordinances. "Because of the ban-the-box patchwork, for administrative ease, national employers should consider one application that delays criminal background checks until after conditional offers," he suggested.

[Visit SHRM's resource page on workforce readiness.]