by The federal Fair Chance to Compete for Jobs Act (Fair Chance Act) limits how and when federal contractors may consider the criminal history of a job applicant. It bans federal civilian and defense agencies from either awarding federal contracts or releasing payments to a contractor who violates the Act. As a condition of either being awarded a federal contract or receiving payment on a federal contract, government contractors may not request a job applicant whose job will provide services or work under the contract to disclose criminal history prior to receiving a conditional offer of employment.
Signed into law by President Trump in December 2019, the Fair Chance Act was part of the National Defense Authorization Act for Fiscal Year 2020. The Fair Chance Act was given a delayed effective date of December 20, 2021.
The prohibition applies to criminal background inquiries made either verbally or in writing. It is a federal contractor ‘ban the box’ regulation, not unlike laws or ordinances found in several states. Fifteen states, including Minnesota, have ‘ban the box’ laws covering private industry. The state laws usually limit the timing of when an employer may make any inquiry regarding an applicant’s criminal history. The ‘box’ reference comes from the practice of including a box on a job application for an applicant to check off if they have ever been convicted of a crime. At one time, this was a very common question on job applications.
Exceptions to the federal Fair Chance Act allow pre- offer criminal history inquiries when there is a state or federal law requiring consideration of criminal history for certain jobs or when the employee will have access to classified information or have sensitive law enforcement or national security duties, if hired. As originally enacted, the law required the government to issue regulations identifying positions exempt from the Act by April 20, 2021. This deadline was later extended to January 5, 2022. As of January 7, 2022, no regulations have been published.
Note: Unless clarified by future regulations, the federal Fair Chance Act does not appear to cover federal subcontractors. The agreement between the subcontractor and the primary federal contractor may, however, include this limitation.
