Building on a law passed in 2019, the Office of Personnel Management introduced final regulations that bar a federal agency or contractor from asking about an applicant’s criminal history until a job offer is made.
The idea is for candidates to be evaluated based on their merit without minor past infractions, or even wrongful convictions, swaying a recruiter’s opinion. This could be particularly advantageous for those who have been incarcerated and were since reintegrated into society.
“If you have the qualifications, skills, and willingness to serve the American public, you deserve a fair chance to compete for employment within the federal government,” said Kiran Ahuja, OPM director, in a statement “America is a nation of second chances and every person deserves to be treated with dignity and respect.”
Offering meaningful work and employment can help reduce recidivism, a number of studies have shown, and this effort helps to ensure prior arrests or sentences — to the extent possible — do not result in an immediate closed door for applicants who have the skills to do the work, according to OPM.
To be sure: agencies can still object to or pass over a candidate on the basis of criminal or credit history, but only after the candidate has been assessed on other factors and a conditional employment offer has been made. And the rule does not apply to candidates for law enforcement positions or classified work.
“The regulations provide the opportunity for a qualified applicant with a criminal history record to advance in the hiring process in the same manner as a qualified applicant without a criminal history record,” the rule says.
The American Bar Association found that there are over 45,000 “collateral consequences” that follow an individual with a criminal conviction.
And in general, the regulation solidifies what has been happening in practice already; for most federal jobs, questions about your criminal history don’t appear on the initial job application or in the initial interview. It’s more likely that information is requested along with the background check, which usually happens just before starting the job.
Job candidates, upon receiving a conditional offer, complete a Declaration for Federal Employment, also referred to as an OF-306, that asks boilerplate questions like “have you been convicted by a military court-martial?” or “are you currently under charges for any violation of law?”
Those with criminal records are generally eligible for employment with the government, however certain convictions, like treason, carry a lifetime ban on eligibility.
The rule is nestled within broader provisions laid out by the Fair Chance to Compete for Jobs Act of 2019, which received bipartisan support and was signed into law with the National Defense Authorization Act for Fiscal Year 2020.
OPM said it will encourage agencies to publicize information about the Fair Chance Act, and the complaint process for those who feel it has been violated, to job applicants and in postings.
“Given the well-documented link between job acquisition and recidivism, reducing barriers to employment for those with criminal records may also improve public safety,” according to a study by the Urban Institute. “When people with criminal records have greater access to jobs, with lower barriers to entry, they have fewer incentives to engage in criminal activity, and less criminal activity in turn enhances public safety.”
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.
