Proposed Rule Expands the Ban on Agencies Inquiring into Criminal Histories

On April 27, 2022, the Office of Personnel Management (OPM) issued a proposed rule pertaining to when, during the hiring process, an agency can request information from a federal job applicant during a background investigation. In December 2019, the Fair Chance to Complete for Jobs Act, also known as the Fair Chance Act (FCA), was signed into law. 5 U.S.C. § 9201 et seq. The FCA prohibits federal agencies and federal contractors from requesting criminal background information before an applicant has received a conditional offer. This also precludes an inquiry contained on the Declaration for Federal Employment (OPM Optional Form 306). There are a few exceptions to this law, for example, positions requiring access to classified information, or law enforcement positions. In those instances, agencies are permitted to inquire about criminal history at any stage of the application process.

The protections offered by the FCA are critical to federal sector hiring practices because they give formerly incarcerated individuals a fair chance at a job. Senator Cory Booker, who introduced the bill enacting the FCA, had this to say:

There are more than 650,000 people released from prison each year. People who have served their time, paid their debt to society, and are returning home to their communities in hopes for a second chance. But all too often, they are freed from physical bars, but they encounter, what I believe are lifetime sentences. They have, literally, 45,000 collateral consequences is [sic] what the American Bar Association refers to them as. These collateral consequences prevent them from getting opportunity. And you have to understand, the overwhelming majority of these people are nonviolent offenders.

OPM regulations – 5 CFR parts 330 and 731 – currently prevent agencies from making inquiries into an applicant’s criminal or credit history. OPM is now proposing new regulations that would allow applicants to file a complaint against an agency in relation to the timing of collection of criminal history information. Additionally, OPM is proposing regulations that will outline adverse action procedures that will apply when an agency employee has violated the requirements, as well as appeal procedures that will be available from a determination by OPM adverse to a federal employee.

The FCA currently allows applicants to complain about an agency’s non-compliance with 5 U.S.C. § 9202 (the limitations on inquiries into criminal records during the hiring process). However, there is currently no mechanism in place that allows federal job applicants to file complaints as they can for other employment related concerns, such with the Office of Special Counsel. OPM is now proposing new regulations to implement the complaint procedure requirements of the FCA. This new complaint procedure is one “under which an applicant will initially file a complaint, or any other information, and if applicable, supporting material with the employing agency, which will transmit the material to OPM.” The proposed rule would grant agencies the authority to investigate a complaint. OPM will then notify the agency employee of negative findings, provide the employee with the opportunity to be “heard,” and render a decision on the final record. OPM believes there is “ample precedent” for agencies to establish internal procedures for receipt and investigation of employment-related complaints against the agency, such as an agency’s responsibility to provide for the “prompt, fair, and impartial” processing of Equal Employment Opportunity (EEO) complaints. Of course, any employee who has ever filed an EEO complaint with a federal agency would hardly consider the investigatory process to be “prompt.” In reality, the process is often fraught with bias and incompetence. Moreover, OPM’s proposal requiring agencies to complete their investigation within 60 days of the filing of a complaint is unrealistic in most cases, depending on the nature of the claim and the complexity of the case. An analogous example may be found in the EEO investigatory process, where it’s exceedingly rare for an agency to complete an investigation within its 180-day requirement to complete investigations.

OPM’s proposed rules do not alter the penalties, 5 U.S.C. § 9204, which range from a written warning to suspension and a civil penalty, for agency employees who violate section 9202. However, OPM is proposing a rule to implement a new adverse action and appeals process related to violations of the FCA. The proposed rules would also give the agency employee alleged to have violated section 9202 certain due process rights, including a “meaningful opportunity—before a decision is made on an adverse action—for an individual to know the charges and penalty and present a defense, with representation,” and “the ability to appeal the adverse action of a suspension of 15 days or more before an impartial adjudicator.” An “impartial adjudicator” in this case would be an Administrative Judge with the Merit Systems Protection Board.

If you believe your rights have been violated under the FCA, reach out to one of the attorneys at KCNF for a consultation.