Background Investigations

Feds Not Allowed to Ask About Criminal History, If Senate Bill Becomes Law


A bill that would prohibit Federal agencies and contractors from asking potential job applicants about their criminal history prior to being given a conditional offer of employment was introduced by Congress and submitted to the Senate on September 10, 2015. Called the “Fair Chance to Compete for Jobs Act of 2015”, the intent of the bill is to give the over 70 million people in the U.S. who have criminal records a fair chance at being selected for employment without having to overcome the bias that comes attached with having a criminal record. There are, however, stipulations or exceptions when the position being applied for requires consideration of a criminal record prior to a conditional offer being made as required by law. These would include:

  • eligibility for appointment to sensitive positions or those requiring a security clearance
  • Federal law enforcement positions

The proposed bill would also require that the Office of Personnel Management develop and implement policy guidance and establish procedures for individuals to submit complaints when compliance violations are present. Interestingly and quite unusual is that the bill spells out detailed adverse actions against Federal employees who violate the policy. These actions are:

  • first time violation = written warning which would be filed in the employee’s official personnel file
  • second time violation = not more than 7 day suspension
  • third time violation = 7 day or more suspension
  • fourth time violation = 7 day or more suspension and civil penalty not more than $250
  • fifth time violation = 7 day or more suspension and civil penalty not more than $500
  • subsequent violations = 7 day or more suspension and civil penalty not more than $1,000

For Federal contractor employees who violate the policy there are also similar consequences that start with a written warning which could progress all the way up to termination of contract and/or debarment.