Federal contractors must wait to ask applicants about criminal convictions until making a conditional job offer, beginning with any federal contracts resulting from solicitations issued after December 20, 2021. We previously reported on the federal law that established this “ban the box” requirement for federal contractors. It's part of the “Fair Chance to Compete for Jobs Act of 2019,” also called the “Fair Chance Act,” which was tucked into a massive defense spending bill, the National Defense Authorization Act for Fiscal Year 2020 (S.1790). The statute provides a few limited exceptions: (1) positions in which criminal history record inquiries are required by law before a conditional job offer is made; (2) positions for individuals who are hired to access classified information under the contract or to perform sensitive law enforcement or national security duties; and (3) positions which will be defined later in regulations, taking into account duties such as working with minors, accessing sensitive information, or managing financial transactions. Unfortunately, no regulations have been published yet.
Tips: Many states (including California, Oregon, and Washington) and some cities already have their own ban-the-box laws; be sure to follow the rules for whatever law is most beneficial to the candidate. If you use a third-party service provider to check an applicant's criminal history, you also must comply with the federal Fair Credit Reporting Act (FCRA). See our Legal Guide, Background Checks: Simple Third-Party Reports. If a candidate's criminal history raises concerns, your Vigilant Law Group employment attorney can help you evaluate whether you have a legitimate basis to reject them for the position.