The Office of Personnel Management (OPM) has published proposed settlement in the Federal Register to implement the federal Fair Chance Act. This law limits the ability of federal agencies and contractors to investigate a candidate’s criminal history during the hiring process. The OPM invites comments on its proposed rules which must arrive before the deadline of June 27, 2022.
For some context, the Equal Opportunity Act was enacted as part of the National Defense Authorization Act of 2020 in 2019. The act codified the existing “no box” policy , which prohibited federal agencies from investigating a candidate’s criminal history before they accepted a conditional job offer and extended it to contractors.
Now, the OPM’s proposed rule reaffirms those regulations, adds an enforcement element, and provides clarity on the types of positions that will be exempt from these requirements, such as those with access to sensitive information, national security and federal law enforcement positions. . For agencies seeking to exempt positions from the no-box policy, they will need to submit a request to the OPM, who will assess whether the position is eligible for one of these exemptions.
These regulations provide investigation and accountability procedures for violations of the regulations, including penalties for hiring agents found to have violated. The regulations provide that if a candidate feels they have been inappropriately questioned about their criminal history, they can file a complaint with the OPM. If subsequent investigation determines that a federal employee has acted improperly, the OPM may impose penalties that may include suspension without pay as well as civil monetary penalties. These sanctions would not be governed by existing policies regarding adverse actions by staff. However, if suspended for periods longer than 14 days, an employee may appeal to the Merit Systems Protection Board (MSPB).
However, even that may have little effect. Under the proposed settlement, if the MSPB finds that one or more charges brought by the OPM are supported by a preponderance of the evidence regardless of each specific detail, it must uphold the action. Of the, “[t]The board may not consider whether the adverse action is for a cause likely to promote the efficiency of the service, nor mitigate the duration of a suspension or the amount of a civil penalty imposed under this part.
Federal agencies, contractors and the general public have until June 26 to comment on the proposed rule.
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