Business and Legal Insights

The Fair Chance to Compete for Jobs Act (“FCA”), also known as the new federal “Ban the Box” law, became effective on December 20, 2021, and prohibits certain federal employers and contractors from requiring a job applicant to disclose his or her criminal background on a job application or during an interview prior to a conditional job offer being extended.  The FCA applies to federal agencies (including certain offices within the executive, legislative, and judicial branches) and federal civilian and defense contractors.  Prudent federal employers, contractors, and human resources professionals should carefully examine their job applications, job postings, and interviewing policies to ensure compliance with this new federal law.

The FCA was enacted to give formerly incarcerated individuals a fair opportunity to compete for federal employment by prohibiting requests for criminal background information until the end of the hiring process. The Office of Congressional Workplace Rights explains: “The purpose of the FCA is not to remove access to criminal history information about an applicant for government employment; rather, the purpose is to move that information to the end of the process to give those with a criminal history a fair chance to compete for a Federal job.”[1]

Under the FCA, federal employers and contractors cannot ask about arrests, indictments, formal criminal charges, sentencing, or sealed or expunged records on an application form or during the interview process.

There are some limited exceptions to the FCA.  A federal employer may ask about an applicant’s criminal background if consideration of a criminal background is otherwise required by law, the position requires access to classified information or national security, or if the applicant is applying to be a law enforcement officer.

Federal employers and contractors should carefully review their policies and consult with their employment law attorneys to ensure compliance and avoid unintentionally opening themselves up to liability.

[1] https://www.ocwr.gov/employee-rights-legislative-branch/ban-the-box/