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Federal Fair Chances Act Will Soon Force Federal Contractors To ‘Ban the Box’ | McGuireWoods LLP


In December 2021, covered federal contractors could begin to see new or amended solicitations and contract terms that prohibit them from investigating the criminal backgrounds of job seekers. The Federal Fair Opportunities to Compete for Employment Act 2019 (Fair Opportunities Act) regulates how and when federal contractors can consider applicants ‘and employees’ criminal backgrounds. It does not appear that the law will apply to federal contractors.

While the Fair Opportunities Law was first promulgated on December 20, 2019 as Article 1123 of the National Defense Authorization Law for Fiscal Year 2020, it will only enter into force on December 20, 2019. December 20, 2021. The law prohibits civilian and military executive agencies. award federal contracts or make payment to a contractor who violates legal requirements. Specifically, as a condition of awarding the contract or receiving payment on a contract, government contractors cannot require a job seeker on the contract to disclose his or her criminal background information before the entrepreneur does not make a conditional job offer. This restriction applies to requests for a criminal history made orally or in writing.

Exceptions to the restriction exist when: (1) a criminal record examination is required by law; or (2) the employee will have access to classified information or will have sensitive law enforcement or national security duties, if hired. Likewise, Covered Agencies may not require an individual or sole proprietorship bidder to disclose criminal record information before determining the apparent winner.

The law required the general service administrator to promulgate regulations by April 20, 2021 that would identify other positions exempt from the law. More specifically, the regulations were supposed to treat as exempt positions involving interaction with minors, access to sensitive information or the management of financial transactions. However, the government has yet to issue such regulations. Although the director of the Defense Acquisitions Regulatory Council commissioned the Acquisitions Law team in January 2020 to draft a rule for federal procurement regulation, no such rule has been published. Latest report extends deadline to January 5, 2022 – which is now after the status takes effect.

In addition to the federal Fair Chance Act, contractors should be aware of their obligations under other federal, state, and local laws. For example, at the federal level, the Equal Employment Opportunity Commission (EEOC) examines background check policies that may have a disparate statistical impact on employees in protected classes, requiring that these limits – among others – be tied to the employment and consistent with the need of the business.

In 2012, the EEOC issued enforcement guidelines explaining that an employer can demonstrate that an exclusion meets the “job-related” standard in one of two ways. First, the employer can validate the criminal conduct screen for the position in question in accordance with the Uniform Guidelines for Employee Selection Procedures, a set of federal guidelines that deal with the use of tests and other selection criteria. in hiring and other employment decisions. Second, an employer can perform a “targeted screen” based on the three “green” factors (taken from the Green v. Missouri Pacific Railroad decision), by analyzing: (1) the nature and seriousness of the conduct; (2) the time elapsed since the execution or execution of the sentence; and (3) the nature of the work. Assessing these factors and performing an individualized assessment can help guard against potential violations of federal non-discrimination laws that the EEOC enforces. The same is true for audits of affirmative action plans, given that in 2013 the Office of Federal Contract Compliance Programs (OFCCP) adopted the EEOC Enforcement Guidelines applicable to contractors. and federal contractors, as well as for OFCCP compliance reviews.

At the state and local level, entrepreneurs should also keep in mind and follow applicable “ban the box” laws. Fifteen states and 22 cities currently prohibit private employers from inquiring about criminal conviction history on job applications, and the District of Columbia and about 37 cities and counties have laws also affecting government contractors. McGuireWoods addressed some of these obligations in legal alerts on September 5, 2014; June 3, 2015; and more recently on May 22, 2020.

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