Why it matters

The trend of enacting "ban the box" legislation has gone federal, with a new bill introduced by a bipartisan group of lawmakers. The Fair Chance Act would prohibit federal contractors or agencies from asking job applicants whether they have been convicted of a crime prior to extending a job offer. Once a conditional offer of employment has been made, the measure would allow employers to inquire about criminal history. The bill includes exceptions for "sensitive positions" such as law enforcement, national security, and those with access to classified information. Legislators cited the rising amount of convicted citizens in the country seeking work as well as the number of jurisdictions passing similar legislation—18 states and 100 local laws to date—as driving forces behind the measure. Reps. Elijah E. Cummings (D-Md.) and Darrell Issa (R-Calif.) introduced the bill in the House, while Sens. Ron Johnson (R-Wis.) and Cory Booker (D-N.J.) presented it in the Senate.

Detailed discussion

Lawmakers in both houses of Congress introduced the Fair Chance Act in September. S. 2021 and H.R. 3470 would prohibit federal agencies or contractors from asking prospective employees about whether they have a criminal record before a formal job offer has been extended.

Once a conditional offer of employment has been made, an employer would be permitted to ask about the applicant's criminal record and revoke the offer based on the results of a criminal background check.

The proposed law includes exceptions for "sensitive positions," including law enforcement, national security, and positions with access to classified information. Protection is provided in the bill for whistleblowers who report coworkers for not following the law, and penalties range from a warning for a first violation to suspensions of increasing length, up to a $1,000 fine for subsequent violations.

Enforcement would be provided by the Office of Personnel Management.

Colloquially referred to as "ban the box" legislation—a reference to a box that applicants check to indicate they have a criminal record—the measure reflects a wave of legislation on a state and local level over the last few years.

Lawmakers supporting the bill said 18 states and more than 100 local entities have already enacted similar measures, with private employers following suit by adopting internal company policies to ban the box.

Rep. Darrell Issa (R-Calif.), who cosponsored the measure in the House of Representatives, cited statistics that "about 9 percent of Americans—roughly 20 million people—have a felony conviction in the United States," necessitating measures to help them obtain employment upon release. "What has struck me most is how challenging we make it for those who truly want to turn their lives around," Sen. Ron Johnson (R-Wis.), who introduced the Senate version of the bill, said in a statement. "I want to help make their transition easier."

The Fair Chance Act is currently pending in both Houses, referred to the Homeland Security and Government Affairs Committee in the Senate and five committees in the House, including Administration, Judiciary, Oversight and Government Reform, Armed Services, and Education and the Workforce.

To read the Fair Chance Act, click here.