You might have missed it, but the prohibition against employers with federal contracts asking about a job applicant's criminal history—part of a defense funding bill signed in late 2019—took effect in the last days of 2021.
The "ban-the-box" provision was inserted into the National Defense Authorization Act for fiscal year 2020 and signed by former President Donald Trump. It means that federal contractors can no longer inquire about an applicant's criminal history before extending a conditional job offer. It is intended to make it easier for people with a criminal record to gain employment.
The Fair Chance Act, which encompassed the ban-the-box provision, went into effect Dec. 20, 2021.
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.
"The law also prohibits contractors from seeking such information from other sources," said Laura Mitchell, an attorney in the Denver office of Jackson Lewis. "It does not apply to job openings unrelated to federal contract work."
More specific guidance is expected to be released by the Office of Personnel Management (OPM) later this month. OPM will also establish a reporting process for violations and a penalties scheme.
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.
"Ban-the-box laws affect many parts of the hiring and employment process," Mitchell said. "Employers should review and revise, if necessary, their hiring practices, application forms, checklists, policies and procedures to ensure compliance. Employers also should provide periodic training to those involved in recruiting and hiring processes."
She added that employers should also keep their obligations under the Fair Credit Reporting Act in mind if they plan to obtain criminal history reports from third-party vendors. "Employers should follow best practices, such as engaging in an individualized assessment, where appropriate, of any disclosed criminal history prior to making any employment decisions."
If criminal history is flagged during the hiring process, guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) in 2012 advises employers on how to proceed.
"An employer can demonstrate an exclusion meets the job-related standard by conducting a targeted screen based on the three 'Green' factors taken from the federal Green v. Missouri Pacific Railroad decision," said Brian Barger, an attorney with McGuireWoods in Charlotte, N.C.
The Green factors include analyzing:
- The nature and gravity of the offense.
- The time elapsed since the offense or completion of the sentence.
- The nature of the job.
"Evaluating these factors and conducting an individualized assessment can help guard against potential violations of the federal nondiscrimination statutes the EEOC enforces," Barger said.