Federal "Ban the Box" Legislation Advancing - the Fair Chance Act

The Fair Chance Act

The Senate Homeland Security and Governmental Affairs Committee recently voted in favor of legislation that would prohibit federal agencies and government contractors from inquiring about a job applicant’s criminal history until after making a conditional employment offer. The proposed law, the Fair Chance Act, would be the first to “ban the box” on the federal level.

New Jersey Senator Cory Booker introduced the Fair Chance Act (S. 2021) in September with bi-partisan support. Companion legislation was also introduced in the House of Representatives. Accordingly, the measure is expected to advance quickly.

The committee’s approval of the Fair Chance Act “is a testament to the growing bipartisan support for reforms that break down barriers to hiring people who’ve paid their debt to society and are looking to turn their lives around,” Sen. Booker stated. “There are millions of Americans with records who are too often passed over by employers without considering their skills or qualifications.”

Why move forward with the Fair Chance Act?

As we have previously discussed on this blog, cities and states across the country, including New Jersey, have passed legislation to “ban the box” in an effort to help individuals with criminal records obtain employment. In New Jersey, the Opportunity to Compete Act prohibits employers with 15 or more employees from requiring an “applicant for employment” to complete any “employment application that makes any inquiries regarding an applicant’s criminal record during the initial employment application process.” According to a press statement by Sen. Booker, 18 states and more than 100 municipalities already have enacted laws that restrict employers from asking about a past felony conviction on a job application.

Under the proposed Fair Chance Act, the federal government — including the executive, legislative, and judicial branches — would be prohibited from requesting criminal history information from applicants until they reach the conditional offer stage. Federal contractors would also be banned from requesting criminal history information from candidates for positions within the scope of federal contracts until the conditional offer stage.

Applying the Fair Chance Act

As with other “ban the box” bills, the legislation provides for a limited number of exceptions. For instance, the ban would not apply to federal law enforcement or national security positions, as well as other jobs where consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. The bill tasks to the Office of Personnel Management the job of drafting policies and procedures necessary to implement the legislation.

Our employment lawyers will be closely tracking the status of the proposed legislation. We encourage employers who work with the federal government to check back regularly for updates.