U.S. General Services Administration
Fair Chance Improvement Act
Since the enactment of the FY 2020 National Defense Authorization Act (NDAA), Federal
agencies and Federal contractors have generally been prohibited from inquiring into a bidder’s
or job applicant’s criminal history until the individual reaches the conditional offer stage, or
consideration of criminal history information earlier in the hiring process unless otherwise
required by law. This provision is commonly referred to as “Ban the Box.” Before the provision
was incorporated into the NDAA, the legislation was introduced as the Fair Chance Act in both
the House and Senate, and had bipartisan support.
Since enactment of the FY 2020 NDAA, GSA and Department of Defense (DoD) have
worked to implement a particular requirement that concerns the prohibition on criminal
history inquiries by contractors prior to conditional offer. This is section 1123 in the FY
2020 NDAA (P.L. 116-92). This requirement limits inquiries by—
● Agencies into the criminal history record of an individual or sole proprietor who submits a
bid for a contract before determining the apparent awardee; and
● Contractors into the criminal history record of an applicant for a position related to work
under a contract before the contractor extends a conditional offer to the applicant.
The authority also requires that DoD and GSA create a complaint mechanism by which
applicants who feel they may have wrongly been discriminated against can avail themselves.
There are also prescribed actions for agencies to follow when determining if there has been a
violation of the prohibition on criminal history inquiries.
This Fair Chance Act implementation structure has created challenges because the FY 2020
NDAA did not assign responsibilities to the Department of Labor (DOL). Typically, DOL
establishes regulations on complaint procedures from cradle to grave, then the Federal
Acquisition Regulation (FAR) implements DOL’s procedures. However, the FY 2020 NDAA
provision assigned these responsibilities directly to DoD for defense contracts and to GSA for
civilian contracts. Neither DoD nor GSA have the infrastructure necessary to fully execute on
these responsibilities, unlike DOL.
The Administration is requesting that Congress reassign these compliance mechanisms
from DoD and GSA to DOL. Reassigning these authorities to DOL will ensure more
effective implementation and compliance with the requirements of the statute, as DOL is
generally tasked with ensuring compliance with applicable employment laws, including those
governing federal contractors. DOL has the existing experience, infrastructure, and related
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subject matter expertise to efficiently investigate complaints about Federal contractor
compliance.
Section-by-Section Analysis
The proposed amendment would affect subsections (b) and (c) of section 4714 of title 41, as
enacted by subsection (a) of section 1123 of the National Defense Authorization Act for Fiscal
Year 2020, by transferring authorities assigned to the Administrator of General Services to the
Secretary of Labor. This would require DOL instead of GSA to administer and enforce the
specified provisions of section 1123. The proposal would also authorize DOL to conduct
complaint investigations and compliance evaluations and to publish the investigative procedures
by regulation, guidance, or by means which DOL deems appropriate. The proposal also would
authorize the Secretary of Labor, rather than the head of the contracting agency, to determine
whether a violation of the prohibition on criminal history inquiries has occurred.
The proposed amendment would also affect subsections (b) and (c) of section 2339 of title 10,
as enacted by subsection (b) of section 1123 of the National Defense Authorization Act for
Fiscal Year 2020, by transferring authorities assigned to the Secretary of Defense to the
Secretary of Labor. This would require DOL instead of DoD to administer and enforce the
specified provisions of section 1123. The proposal would also authorize DOL to conduct
complaint investigations and compliance evaluations and to publish the investigative
procedures by regulation, guidance, or by means which DOL deems appropriate. The
proposal also would authorize the Secretary of Labor, rather than the head of the contracting
agency, to determine whether a violation of the prohibition on criminal history inquiries has
occurred.
Proposed Legislative Text
SEC.__. COMPLIANCE PROCEDURES FOR PROHIBITION ON CRIMINAL HISTORY
INQUIRIES BY FEDERAL CONTRACTORS PRIOR TO CONDITIONAL OFFER.
(a) DEFENSE CONTRACTS.—Section 4657 of title 10, United States Code, is amended—
(1) by amending subsection (b) to read as follows:
“(b) COMPLIANCE —
(1) PROCEDURES FOR SUBMISSION OF COMPLAINT.— The Secretary of Labor shall establish, and
make available to the public, procedures under which an applicant for a position with a
Federal contractor may submit to the Secretary of Labor a complaint, or any other
information, relating to compliance by the contractor with subsection (a)(1)(B).
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(2) INVESTIGATION OF COMPLIANCE.—In addition to the authority to investigate
compliance by a contractor with subsection (a)(1)(B) pursuant to a complaint submitted
under paragraph (1) of this subsection, the Secretary of Labor may investigate compliance
with subsection (a)(1)(B) in conducting a compliance evaluation under section 60–1.20,
60–300.60, or 60–741.60 of title 41, Code of Federal Regulations (or any successor
regulation). The Secretary may publish such procedures by regulation, guidance, or by
means which the Secretary deems appropriate.”; and
(2) in subsection (c)—
(A) in paragraph (1)—
(i) by striking “Defense” and inserting “Labor”;
(ii) by inserting “of Labor” before “shall”; and
(iii) by inserting “, based upon the results of a complaint investigation or
compliance evaluation conducted by the Secretary of Labor under section
60–1.20, 60–300.60, or 60–741.60 of title 41, Code of Federal
Regulations (or any successor regulation)” after “determines”;
(iv) in subparagraph (C), by striking “warning” and inserting “notice”.
(B) in paragraph (2)—
(i) by striking “Secretary of Defense” and inserting “Secretary of Labor”
and inserting “of Labor”; and
(ii) by inserting “as may be necessary” after “Federal agencies”.
(iii) by striking subparagraph (C) and inserting the following:
“(C) taking any of the actions described under section 202(7) of Executive Order 11246 (related
to equal employment opportunity) and section 60–1.27 of title 41, Code of Federal Regulations
(or any successor regulation).”.
(b) CIVILIAN AGENCY CONTRACTS.—Section 4714 of title 41, United States Code, is amended—
(1) by amending subsection (b) to read as follows:
“(b) COMPLIANCE —
(1) PROCEDURES FOR SUBMISSION OF COMPLAINT.— The Secretary of Labor shall establish, and
make available to the public, procedures under which an applicant for a position with a
Federal contractor may submit to the Secretary a complaint, or any other information,
relating to compliance by the contractor with subsection (a)(1)(B).
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(2) INVESTIGATION OF COMPLIANCE.—In addition to the authority to investigate
compliance by a contractor with subsection (a)(1)(B) pursuant to a complaint submitted
under paragraph (1) of this subsection, the Secretary of Labor may investigate compliance
with subsection (a)(1)(B) in conducting a compliance evaluation under section 60–1.20,
60–300.60, or 60–741.60 of title 41, Code of Federal Regulations (or any successor
regulation). The Secretary may publish such procedures by regulation, guidance, or by
means which the Secretary deems appropriate.”; and
(2) in subsection (c)—
(A) in paragraph (1)—
(i) by striking “head of an executive agency” and inserting “Secretary of
Labor”;
(ii) by inserting “, based upon the results of a complaint investigation or
compliance evaluation conducted by the Secretary of Labor under section
60–1.20, 60–300.60, or 60–741.60 of title 41, Code of Federal
Regulations (or any successor regulation)” after “determines”;
(iii) by striking “such head” and inserting “the Secretary of Labor”; and
(iv) in subparagraph (C), by striking “warning” and inserting “notice”; and
(B) in paragraph (2)—
(i) by striking “head of an executive agency” and inserting “Secretary of
Labor”;
(ii) by inserting “, based upon the results of a complaint investigation or
compliance evaluation conducted by the Secretary of Labor under section
60–1.20, 60–300.60, or 60–741.60 of title 41, Code of Federal
Regulations (or any successor regulation),” after “determines”;
(iii) by striking “such head” and inserting “the Secretary of Labor”; and
(iv) by inserting “as may be necessary” after “Federal agencies”.
(v) by striking subparagraph (C) and inserting the following:
“(C) taking any of the actions described under section 202(7) of Executive
Order 11246 (related to equal employment opportunity) and section
60–1.27 of title 41, Code of Federal Regulations (or any successor
regulation).”.
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(c) APPLICATION.—This Act, and the amendments made by this Act, shall apply with respect to
contracts awarded on or after the date that is 16 months after the date of the enactment of this
Act.
Proposed Changes
to Law (Effect of Proposed Language)
TITLE 10—ARMED
FORCES
§4657. Prohibition
on criminal history inquiries by contractors prior to conditional offer
(a) L
IMITATION ON CRIMINAL HISTORY INQUIRIES.-
(1) I
N GENERAL.-Except as provided in paragraphs (2) and (3), the head of an agency-
(A) may not
require that an individual or sole proprietor who submits a bid for a contract
to disclose criminal history record information regarding that individual or sole proprietor
before determining the apparent awardee; and
(B) shall require
as a condition of receiving a Federal contract and receiving payments
under such contract that the contractor may not verbally or through written form request the
disclosure of criminal history record information regarding an applicant for a position
related to work under such contract before such contractor extends a conditional offer to
the applicant.
(2) O
THERWISE REQUIRED BY LAW.-The prohibition under paragraph (1) does not apply with
respect to a contract if consideration of criminal history record information prior to a conditional
offer with respect to the position is otherwise required by law.
(3) E
XCEPTION FOR CERTAIN POSITIONS.-
(A) I
N GENERAL.-The prohibition under paragraph (1) does not apply with respect to-
(i) a contract
that requires an individual hired under the contract to access classified
information or to have sensitive law enforcement or national security duties; or
(ii) a position
that the Secretary of Defense identifies under the regulations issued under
subparagraph (B).
(B) R
EGULATIONS.-
(i) I
SSUANCE.-Not later than 16 months after the date of enactment of the Fair Chance to
Compete for Jobs Act of 2019, the Secretary of Defense, in consultation with the
Administrator of General Services, shall issue regulations identifying additional positions
with respect to which the prohibition under paragraph (1) shall not apply, giving due
consideration to positions that involve interaction with minors, access to sensitive
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information, or managing financial transactions.
(ii) COMPLIANCE WITH CIVIL RIGHTS LAWS.-The regulations issued under clause (i) shall-
(I) be consistent with, and in no way supersede, restrict, or limit the application of title
VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal
civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are
conducted in a manner consistent with relevant Federal civil rights laws.
(b) COMPLAINT PROCEDURES.-The Secretary of Defense shall establish and publish procedures
under which an applicant for a position with a Department of Defense contractor may submit a
complaint, or any other information, relating to compliance by the contractor with subsection
(a)(1)(B).
COMPLIANCE
(1)PROCEDURES FOR SUBMISSION OF COMPLAINT.— The Secretary of Labor shall establish, and
make available to the public, procedures under which an applicant for a position with a
Federal contractor may submit to the Secretary a complaint, or any other information, relating
to compliance by the contractor with subsection (a)(1)(B).
(2)“INVESTIGATION OF COMPLIANCE.—In addition to the authority to investigate
compliance by a contractor with subsection (a)(1)(B) pursuant to a complaint submitted under
paragraph (1) of this subsection, the Secretary of Labor may investigate compliance with
subsection (a)(1)(B) in conducting a compliance evaluation under section 60–1.20,
60–300.60, or 60–741.60 of title 41, Code of Federal Regulations (or any successor
regulation). The Secretary may publish such procedures by regulation, guidance, or by
means which the Secretary deems appropriate.”; and
(c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.-
(1) FIRST VIOLATION.-If the Secretary of Defense Labor determines based upon the results of
a complaint investigation or compliance evaluation conducted by the Secretary of Labor
under section 60–1.20,
60–300.60, or 60–741.60 of title 41, Code of Federal Regulations (or
any successor regulation that a contractor has violated subsection (a)(1)(B), the Secretary of
Labor shall
-
(A) notify the contractor;
(B) provide 30 days after such notification for the contractor to appeal the determination;
and
(C) issue a written warning notice to the contractor that includes a description of the
violation and the additional remedies that may apply for subsequent violations.
(2) SUBSEQUENT VIOLATIONS.-If the Secretary of Defense Labor determines based upon the
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results of a complaint investigation or compliance evaluation conducted by the Secretary of
Labor under section
60–1.20, 60–300.60, or 60–741.60 of title 41, Code of Federal
Regulations (or any successor regulation) that a contractor that was subject to paragraph (1)
has committed a subsequent violation of subsection (a)(1)(B), the Secretary of Labor shall
notify the contractor, shall provide 30 days after such notification for the contractor to appeal
the determination, and, in consultation with the relevant Federal agencies as may be
necessary, may take actions, depending on the severity of the infraction and the contractor's
history of violations, including-
(A) providing written
guidance to the contractor that the contractor's eligibility for
contracts requires compliance with this section;
(B) requiring that
the contractor respond within 30 days affirming that the contractor is
taking steps to comply with this section; and
(C) taking any
of the actions described under section 202(7) of Executive Order 11246
(related to equal employment opportunity) and section 60–1.27 of title 41, Code of Federal
Regulations (or any successor regulation)suspending payment
under the contract for which
the applicant was being considered until the contractor demonstrates compliance with this
section.
(d) D
EFINITIONS.-In this section:
(1) C
ONDITIONAL OFFER.-The term "conditional offer" means an offer of employment for a
position related to work under a contract that is conditioned upon the results of a criminal
history inquiry.
(2) C
RIMINAL HISTORY RECORD INFORMATION.-The term "criminal history record information" has
the meaning given that term in section 9201 of title 5.
TITLE 41—PUBLIC
CONTRACTS
§4714. Prohibition
on criminal history inquiries by contractors prior to conditional offer
(a) L
IMITATION ON CRIMINAL HISTORY INQUIRIES.-
(1) I
N GENERAL.-Except as provided in paragraphs (2) and (3), an executive agency-
(A) may not
require that an individual or sole proprietor who submits a bid for a contract
to disclose criminal history record information regarding that individual or sole proprietor
before determining the apparent awardee; and
(B) shall require,
as a condition of receiving a Federal contract and receiving payments
under such contract that the contractor may not verbally, or through written form, request
the disclosure of criminal history record information regarding an applicant for a position
related to work under such contract before the contractor extends a conditional offer to the
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applicant.
(2) OTHERWISE REQUIRED BY LAW.-The prohibition under paragraph (1) does not apply with
respect to a contract if consideration of criminal history record information prior to a
conditional offer with respect to the position is otherwise required by law.
(3) EXCEPTION FOR CERTAIN POSITIONS.-
(A) In general.-The prohibition under paragraph (1) does not apply with respect to-
(i) a contract that requires an individual hired under the contract to access classified
information or to have sensitive law enforcement or national security duties; or
(ii) a position that the Administrator of General Services identifies under the
regulations issued under subparagraph (B).
(B) REGULATIONS.-
(i) ISSUANCE.-Not later than 16 months after the date of enactment of the Fair Chance
to Compete for Jobs Act of 2019, the Administrator of General Services, in consultation
with the Secretary of Defense, shall issue regulations identifying additional positions with
respect to which the prohibition under paragraph (1) shall not apply, giving due
consideration to positions that involve interaction with minors, access to sensitive
information, or managing financial transactions.
(ii) COMPLIANCE WITH CIVIL RIGHTS LAWS.-The regulations issued under clause (i) shall-
(I) be consistent with, and in no way supersede, restrict, or limit the application of
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant
Federal civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are
conducted in a manner consistent with relevant Federal civil rights laws.
(b) COMPLIANCECOMPLAINT PROCEDURES.-The Administrator of General Services shall
establish and publish procedures under which an applicant for a position with a Federal
contractor may submit to the Administrator a complaint, or any other information, relating to
compliance by the contractor with subsection (a)(1)(B).
(1)PROCEDURES FOR SUBMISSION OF COMPLAINT.— The Secretary of Labor shall establish, and make
available to the public, procedures under which an applicant for a position with a Federal
contractor may submit to the Secretary a complaint, or any other information, relating to
compliance by the contractor with subsection (a)(1)(B).
(2)INVESTIGATION OF COMPLIANCE.—In addition to the authority to investigate compliance
by a contractor with subsection (a)(1)(B) pursuant to a complaint submitted under paragraph (1)
of this subsection, the Secretary of Labor may investigate compliance with subsection (a)(1)(B)
in conducting a compliance evaluation under section 60–1.20,
60–300.60, or 60–741.60 of title
41, Code of Federal Regulations (or any successor regulation). The Secretary may publish such
procedures by regulation, guidance, or by means which the Secretary deems appropriate.
(c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.-
(1) FIRST VIOLATION.-If the head of an executive agency Secretary of Labor determines based
upon the results of a complaint investigation or compliance evaluation conducted by the
Secretary of Labor under section 60–1.20,
60–300.60, or 60–741.60 of title 41, Code of
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Federal Regulations (or any successor regulation) that a contractor has violated subsection
(a)(1)(B), such head shall
-
(A) notify the contractor;
(B) provide 30 days after such notification for the contractor to appeal the determination;
and
(C) issue a written warning notice to the contractor that includes a description of the
violation and the additional remedies that may apply for subsequent violations.
(2) SUBSEQUENT VIOLATION.-If the head of an executive agency Secretary of Labor determines
that a contractor that was subject to paragraph (1) has committed a subsequent violation of
subsection (a)(1)(B),
such head the Secretary of Labor shall notify the contractor, shall
provide 30 days after such notification for the contractor to appeal the determination, and, in
consultation with the relevant Federal agencies as may be necessary, may take actions,
depending on the severity of the infraction and the contractor's history of violations, including
-
(A) providing written guidance to the contractor that the contractor's eligibility for
contracts requires compliance with this section;
(B) requiring that the contractor respond within 30 days affirming that the contractor is
taking steps to comply with this section; and
(C) taking any of the actions described under section 202(7) of Executive Order 11246
(related to equal employment opportunity) and section 60–1.27 of title 41, Code of Federal
Regulations (or any successor regulation).
suspending payment under the contract for
which the applicant was being considered until the contractor demonstrates compliance
with this section
.
(d) DEFINITIONS.-In this section:
(1) CONDITIONAL OFFER.-The term "conditional offer" means an offer of employment for a
position related to work under a contract that is conditioned upon the results of a criminal
history inquiry.
(2) CRIMINAL HISTORY RECORD INFORMATION.-The term "criminal history record information" has
the meaning given that term in section 9201 of title 5.
Budget Implications
The proposal would shift implementation costs from DoD and GSA to DOL. CBO has
estimated these costs to be less than $500,000 annually. DOL may be able to more efficiently
implement these requirements by leveraging existing personnel and procedures.
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