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News from Congress: Federal Applicants and the Fair Chance Act

News from Congress: In late December 2019, Congress passed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, Pub.L. 116-92.  The NDAA contained a new statute--the "Fair Chance Act"--which made important changes to federal hiring procedures for job applicants with criminal records. 

Title XI, Sections 1121-1124 of the NDAA enacted the Fair Chance Act.  The Fair Chance Act is a "ban the box" statute applying to federal job applicants with prior criminal records, a topic previously discussed in this blog.  Specifically, the Fair Chance Act prohibits federal agencies (including the Postal Service, legislative branch and judicial branch employees, the Executive Office of the President) and federal contractors from asking about criminal histories of job applicants-including through Optional Form 306-until after a conditional job offer has been made first. Exceptions are made where such inquiries are required by law, for federal law enforcement officer positions, and for positions where the Office of Personnel Management (OPM) has gained a waiver in advance. If an employee has violated the Fair Chance Act, the offending employee receives a written warning which is placed in the employee's Official Personnel Folder on the first offense. For the second offense, the offending employee may be suspended up to 7 days. For the third offense, the offending employee may be suspended for more than 7 days. For fourth offenses and onward, the offending employee may be both suspended and forced to pay a monetary fine ranging from $250 to $1000. Alternate sanctions, up to suspension of payment on the contract, apply where the violation is by a contractor rather than a federal employee. Enforcement mechanisms were not specified by the Fair Chance Act, and are to be promulgated in subsequent regulations.

If you are a federal employee or job applicant, and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.

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