Ban-the-Box Reaches Federal Civilian and Defense Contractors

Seyfarth Synopsis: On December 17, 2019, Congress passed "The Fair Chance To Compete for Jobs Act of 2019" (the “Act”) as part of the National Defense Authorization Act. The Act provides that as of December 20, 2021, federal agencies (including offices within the executive, legislative, and judicial branches) and federal civilian and defense contractors may not request disclosure of criminal history record information regarding an applicant for a position related to work under the government contract before the contractor extends a conditional offer to the applicant. The President signed the law, which had bipartisan support, on December 20, 2019.

The Act expressly covers all executive agencies (including cabinet agencies and the U.S. Postal Service, but not including the armed forces), the legislative branch, and the judicial branch of the federal government (other than judges, justices, and magistrates). It also applies to civilian agency and defense contracts entered into with private employers.

Notably, “conditional offer” is defined to mean an offer of employment that is “conditioned upon the results of a criminal history inquiry.” This is important because it may arguably mean that at the time of a conditional offer, all other pre-hire contingencies, if any, must have cleared, including consideration of non-criminal history components in a background check or employment or personal reference checks.

There are exceptions. Specifically, the Act does not apply to:

  • Positions where a background check is required by law, but only if the law requires consideration of the criminal record before an offer is made. In other words, if the law mandating the criminal history background check is silent as to the timing of the inquiry, the employer must still wait until after a conditional offer of employment.

  • Positions involving access to classified information or having sensitive law enforcement or national security duties. FULL ARTICLE

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