II 

115TH CONGRESS 

1ST SESSION S. 842 

To prohibit Federal agencies and Federal contractors from requesting that 

an applicant for employment disclose criminal history record information 

before the applicant has received a conditional offer, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 5 (legislative day, APRIL 4), 2017 

Mr. BOOKER (for himself, Mr. JOHNSON, Ms. BALDWIN, Mrs. ERNST, Mr. 

BROWN, and Mr. PORTMAN) introduced the following bill; which was read 

twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To prohibit Federal agencies and Federal contractors from 

requesting that an applicant for employment disclose 

criminal history record information before the applicant 

has received a conditional offer, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Chance to Com5 pete for Jobs Act of 2017’’ or the ‘‘Fair Chance Act’’. 


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1 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

2 PRIOR TO CONDITIONAL OFFER FOR FED3 ERAL EMPLOYMENT. 

4 (a) IN GENERAL.—Subpart H of part III of title 5, 

5 United States Code, is amended by adding at the end the 

6 following: 

7 ‘‘CHAPTER 92—PROHIBITION ON CRIMI8 NAL HISTORY INQUIRIES PRIOR TO 

9 CONDITIONAL OFFER 

‘‘Sec. 

‘‘9201. Definitions. 

‘‘9202. Limitations on requests for criminal history record information. 

‘‘9203. Agency policies; whistleblower complaint procedures. 

‘‘9204. Adverse action. 

‘‘9205. Procedures. 

‘‘9206. Rules of construction. 

10 ‘‘§ 9201. Definitions 

11 ‘‘In this chapter— 

12 ‘‘(1) the term ‘agency’ means ‘Executive agen13 cy’ as such term is defined in section 105 and in14 cludes— 

15 ‘‘(A) the United States Postal Service and 

16 the Postal Regulatory Commission; and 

17 ‘‘(B) the Executive Office of the President; 

18 ‘‘(2) the term ‘appointing authority’ means an 

19 employee in the executive branch of the Government 

20 of the United States that has authority to make ap21 pointments to positions in the civil service; 


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1 ‘‘(3) the term ‘conditional offer’ means an offer 

2 of employment in a position in the civil service that 

3 is conditioned upon the results of a criminal history 

4 inquiry; 

5 ‘‘(4) the term ‘criminal history record informa6 tion’— 

7 ‘‘(A) except as provided in subparagraph 

8 (B), has the meaning given the term in section 

9 9101(a); 

10 ‘‘(B) includes any information described in 

11 the first sentence of section 9101(a)(2) that has 

12 been sealed or expunged pursuant to law; and 

13 ‘‘(C) includes information collected by a 

14 criminal justice agency, relating to an act or al15 leged act of juvenile delinquency, that is analo16 gous to criminal history record information (in17 cluding such information that has been sealed 

18 or expunged pursuant to law); and 

19 ‘‘(5) the term ‘suspension’ has the meaning 

20 given the term in section 7501. 

21 ‘‘§ 9202. Limitations on requests for criminal history 

22 record information 

23 ‘‘(a) INQUIRIES PRIOR TO CONDITIONAL OFFER.— 

24 Except as provided in subsections (b) and (c), an employee 

25 of an agency may not request, in oral or written form (inVerDate Sep 11 2014 04:27 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S842.IS S842

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1 cluding through the Declaration for Federal Employment 

2 (Office of Personnel Management Optional Form 306), or 

3 any similar successor form), including through the 

4 USAJOBS Internet Web site or any other electronic 

5 means, that an applicant for an appointment to a position 

6 in the civil service disclose criminal history record informa7 tion regarding the applicant before the appointing author8 ity extends a conditional offer to the applicant. 

9 ‘‘(b) OTHERWISE REQUIRED BY LAW.—The prohibi10 tion under subsection (a) shall not apply with respect to 

11 an applicant for a position in the civil service if consider12 ation of criminal history record information prior to a con13 ditional offer with respect to the position is otherwise re14 quired by law. 

15 ‘‘(c) EXCEPTION FOR CERTAIN POSITIONS.— 

16 ‘‘(1) IN GENERAL.—The prohibition under sub17 section (a) shall not apply with respect to an appli18 cant for an appointment to a position— 

19 ‘‘(A) that requires a determination of eligi20 bility described in clause (i), (ii), or (iii) of sec21 tion 9101(b)(1)(A); 

22 ‘‘(B) as a Federal law enforcement officer 

23 (as defined in section 115(c) of title 18); or 


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1 ‘‘(C) identified by the Director of the Of2 fice of Personnel Management in the regula3 tions issued under paragraph (2). 

4 ‘‘(2) REGULATIONS.— 

5 ‘‘(A) ISSUANCE.—The Director of the Of6 fice of Personnel Management shall issue regu7 lations identifying additional positions with re8 spect to which the prohibition under subsection 

9 (a) shall not apply, giving due consideration to 

10 positions that involve interaction with minors, 

11 access to sensitive information, or managing fi12 nancial transactions. 

13 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS

14 LAWS.—The regulations issued under subpara15 graph (A) shall— 

16 ‘‘(i) be consistent with, and in no way 

17 supersede, restrict, or limit the application 

18 of title VII of the Civil Rights Act of 1964 

19 (42 U.S.C. 2000e et seq.) or other relevant 

20 Federal civil rights laws; and 

21 ‘‘(ii) ensure that all hiring activities 

22 conducted pursuant to the regulations are 

23 conducted in a manner consistent with rel24 evant Federal civil rights laws. 


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1 ‘‘§ 9203. Agency policies; complaint procedures 

2 ‘‘The Director of the Office of Personnel Manage3 ment shall— 

4 ‘‘(1) develop, implement, and publish a policy to 

5 assist employees of agencies in complying with sec6 tion 9202 and the regulations issued pursuant to 

7 such section; and 

8 ‘‘(2) establish and publish procedures under 

9 which an applicant for an appointment to a position 

10 in the civil service may submit a complaint, or any 

11 other information, relating to compliance by an em12 ployee of an agency with section 9202. 

13 ‘‘§ 9204. Adverse action 

14 ‘‘(a) FIRST VIOLATION.—If the Director of the Office 

15 of Personnel Management determines, after notice and an 

16 opportunity for a hearing on the record, that an employee 

17 of an agency has violated section 9202, the Director 

18 shall— 

19 ‘‘(1) issue to the employee a written warning 

20 that includes a description of the violation and the 

21 additional penalties that may apply for subsequent 

22 violations; and 

23 ‘‘(2) file such warning in the employee’s official 

24 personnel record file. 

25 ‘‘(b) SUBSEQUENT VIOLATIONS.—If the Director of 

26 the Office of Personnel Management determines, after noVerDate Sep 11 2014 04:27 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S842.IS S842

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1 tice and an opportunity for a hearing on the record, that 

2 an employee that was subject to subsection (a) has com3 mitted a subsequent violation of section 9202, the Director 

4 may take the following action: 

5 ‘‘(1) For a second violation, suspension of the 

6 employee for a period of not more than 7 days. 

7 ‘‘(2) For a third violation, suspension of the 

8 employee for a period of more than 7 days. 

9 ‘‘(3) For a fourth violation— 

10 ‘‘(A) suspension of the employee for a pe11 riod of more than 7 days; and 

12 ‘‘(B) a civil penalty against the employee 

13 in an amount that is not more than $250. 

14 ‘‘(4) For a fifth violation— 

15 ‘‘(A) suspension of the employee for a pe16 riod of more than 7 days; and 

17 ‘‘(B) a civil penalty against the employee 

18 in an amount that is not more than $500. 

19 ‘‘(5) For any subsequent violation— 

20 ‘‘(A) suspension of the employee for a pe21 riod of more than 7 days; and 

22 ‘‘(B) a civil penalty against the employee 

23 in an amount that is not more than $1,000. 


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1 ‘‘§ 9205. Procedures 

2 ‘‘(a) APPEALS.—The Director of the Office of Per3 sonnel Management shall by rule establish procedures pro4 viding for an appeal from any adverse action taken under 

5 section 9204 by not later than 30 days after the date of 

6 the action. 

7 ‘‘(b) APPLICABILITY OF OTHER LAWS.—An adverse 

8 action taken under section 9204 (including a determina9 tion in an appeal from such an action under subsection 

10 (a) of this section) shall not be subject to— 

11 ‘‘(1) the procedures under chapter 75; or 

12 ‘‘(2) except as provided in subsection (a) of this 

13 section, appeal or judicial review. 

14 ‘‘§ 9206. Rules of construction 

15 ‘‘Nothing in this chapter may be construed to— 

16 ‘‘(1) authorize any officer or employee of an 

17 agency to request the disclosure of information de18 scribed under subparagraphs (B) and (C) of section 

19 9201(4); or 

20 ‘‘(2) create a private right of action for any 

21 person.’’. 

22 (b) REGULATIONS; EFFECTIVE DATE.— 

23 (1) REGULATIONS.—Not later than 1 year after 

24 the date of enactment of this Act, the Director of 

25 the Office of Personnel Management shall issue such 

26 regulations as are necessary to carry out chapter 92 


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1 of title 5, United States Code (as added by this 

2 Act). 

3 (2) EFFECTIVE DATE.—Section 9202 of title 5, 

4 United States Code (as added by this Act), shall 

5 take effect on the date that is 2 years after the date 

6 of enactment of this Act. 

7 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

8 The table of chapters for part III of title 5, United States 

9 Code, is amended by inserting after the item relating to 

10 chapter 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

conditional offer .................................................... 9201’’. 

11 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

12 (1) IN GENERAL.—The Congressional Account13 ability Act of 1995 (2 U.S.C. 1301 et seq.) is 

14 amended— 

15 (A) in section 102(a) (2 U.S.C. 1302(a)), 

16 by adding at the end the following: 

17 ‘‘(12) Section 9202 of title 5, United States 

18 Code.’’; 

19 (B) by redesignating section 207 (2 U.S.C. 

20 1317) as section 208; and 

21 (C) by inserting after section 206 (2 

22 U.S.C. 1316) the following new section: 


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1 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI2 NAL HISTORY INQUIRIES. 

3 ‘‘(a) DEFINITIONS.—In this section, the terms ‘agen4 cy’, ‘criminal history record information’, and ‘suspension’ 

5 have the meanings given the terms in section 9201 of title 

6 5, United States Code, except as otherwise modified by 

7 this section. 

8 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR9 IES.— 

10 ‘‘(1) IN GENERAL.— 

11 ‘‘(A) IN GENERAL.—Except as provided in 

12 subparagraph (B), an employee of an employing 

13 office may not request that an applicant for em14 ployment as a covered employee disclose crimi15 nal history record information if the request 

16 would be prohibited under section 9202 of title 

17 5, United States Code, if made by an employee 

18 of an agency. 

19 ‘‘(B) CONDITIONAL OFFER.—For purposes 

20 of applying that section 9202 under subpara21 graph (A), a reference in that section 9202 to 

22 a conditional offer shall be considered to be an 

23 offer of employment as a covered employee that 

24 is conditioned upon the results of a criminal 

25 history inquiry. 


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1 ‘‘(2) RULES OF CONSTRUCTION.—The provi2 sions of section 9206 of title 5, United States Code, 

3 shall apply to employing offices, consistent with reg4 ulations issued under subsection (d). 

5 ‘‘(c) REMEDY.— 

6 ‘‘(1) IN GENERAL.—The remedy for a violation 

7 of subsection (b)(1) shall be such remedy as would 

8 be appropriate if awarded under section 9204 of title 

9 5, United States Code, if the violation had been 

10 committed by an employee of an agency, consistent 

11 with regulations issued under subsection (d), except 

12 that the reference in that section to a suspension 

13 shall be considered to be a suspension with the level 

14 of compensation provided for a covered employee 

15 who is taking unpaid leave under section 202. 

16 ‘‘(2) PROCESS FOR OBTAINING RELIEF.—An 

17 applicant for employment as a covered employee who 

18 alleges a violation of subsection (b)(1) may rely on 

19 the provisions of title IV (other than sections 

20 404(2), 407, and 408), consistent with regulations 

21 issued under subsection (d). 

22 ‘‘(d) REGULATIONS TO IMPLEMENT SECTION.— 

23 ‘‘(1) IN GENERAL.—Not later than 18 months 

24 after the date of enactment of the Fair Chance to 

25 Compete for Jobs Act of 2017, the Board shall, purVerDate Sep 11 2014 04:27 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S842.IS S842

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1 suant to section 304, issue regulations to implement 

2 this section. 

3 ‘‘(2) PARALLEL WITH AGENCY REGULATIONS.— 

4 The regulations issued under paragraph (1) shall be 

5 the same as substantive regulations issued by the 

6 Director of the Office of Personnel Management 

7 under section 2(b)(1) of the Fair Chance to Com8 pete for Jobs Act of 2017 to implement the statu9 tory provisions referred to in subsections (a) through 

10 (c) except to the extent that the Board may deter11 mine, for good cause shown and stated together with 

12 the regulation, that a modification of such regula13 tions would be more effective for the implementation 

14 of the rights and protections under this section. 

15 ‘‘(e) EFFECTIVE DATE.—Section 102(a)(12) and 

16 subsections (a) through (c) shall take effect on the date 

17 on which section 9202 of title 5, United States Code, ap18 plies with respect to agencies.’’. 

19 (2) CLERICAL AMENDMENT.—The table of con20 tents of such Act is amended— 

21 (A) by redesignating the item relating to 

22 section 207 as the item relating to section 208; 

23 and 

24 (B) by inserting after the item relating to 

25 section 206 the following new item: 

‘‘Sec. 207. Rights and protections relating to criminal history inquiries.’’. 


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1 (e) APPLICATION TO JUDICIAL BRANCH.— 

2 (1) IN GENERAL.—Section 604 of title 28, 

3 United States Code, is amended by adding at the 

4 end the following: 

5 ‘‘(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIR6 IES.— 

7 ‘‘(1) DEFINITIONS.—In this subsection— 

8 ‘‘(A) the terms ‘agency’ and ‘criminal his9 tory record information’ have the meanings 

10 given those terms in section 9201 of title 5; 

11 ‘‘(B) the term ‘covered employee’ means an 

12 employee of the judicial branch of the United 

13 States Government, other than— 

14 ‘‘(i) any judge or justice who is enti15 tled to hold office during good behavior; 

16 ‘‘(ii) a United States magistrate 

17 judge; or 

18 ‘‘(iii) a bankruptcy judge; and 

19 ‘‘(C) the term ‘employing office’ means any 

20 office or entity of the judicial branch of the 

21 United States Government that employs covered 

22 employees. 

23 ‘‘(2) RESTRICTION.—A covered employee may 

24 not request that an applicant for employment as a 

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1 formation if the request would be prohibited under 

2 section 9202 of title 5 if made by an employee of an 

3 agency. 

4 ‘‘(3) EMPLOYING OFFICE POLICIES; COMPLAINT

5 PROCEDURE.—The provisions of sections 9203 and 

6 9206 of title 5 shall apply to employing offices and 

7 to applicants for employment as covered employees, 

8 consistent with regulations issued by the Director to 

9 implement this subsection. 

10 ‘‘(4) ADVERSE ACTION.— 

11 ‘‘(A) ADVERSE ACTION.—The Director 

12 may take such adverse action with respect to a 

13 covered employee who violates paragraph (2) as 

14 would be appropriate under section 9204 of 

15 title 5 if the violation had been committed by 

16 an employee of an agency. 

17 ‘‘(B) APPEALS.—The Director shall by 

18 rule establish procedures providing for an ap19 peal from any adverse action taken under sub20 paragraph (A) by not later than 30 days after 

21 the date of the action. 

22 ‘‘(C) APPLICABILITY OF OTHER LAWS.— 

23 Except as provided in subparagraph (B), an ad24 verse action taken under subparagraph (A) (in25 cluding a determination in an appeal from such 


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1 an action under subparagraph (B)) shall not be 

2 subject to appeal or judicial review. 

3 ‘‘(5) REGULATIONS TO BE ISSUED.— 

4 ‘‘(A) IN GENERAL.—Not later than 18 

5 months after the date of enactment of the Fair 

6 Chance to Compete for Jobs Act of 2017, the 

7 Director shall issue regulations to implement 

8 this subsection. 

9 ‘‘(B) PARALLEL WITH AGENCY REGULA10 TIONS.—The regulations issued under subpara11 graph (A) shall be the same as substantive reg12 ulations promulgated by the Director of the Of13 fice of Personnel Management under section 

14 2(b)(1) of the Fair Chance to Compete for Jobs 

15 Act of 2017 except to the extent that the Direc16 tor of the Administrative Office of the United 

17 States Courts may determine, for good cause 

18 shown and stated together with the regulation, 

19 that a modification of such regulations would be 

20 more effective for the implementation of the 

21 rights and protections under this subsection. 

22 ‘‘(6) EFFECTIVE DATE.—Paragraphs (1) 

23 through (4) shall take effect on the date on which 

24 section 9202 of title 5 applies with respect to agen25 cies.’’. 


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1 SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY 

2 CONTRACTORS PRIOR TO CONDITIONAL 

3 OFFER. 

4 (a) CIVILIAN AGENCY CONTRACTS.— 

5 (1) IN GENERAL.—Chapter 47 of title 41, 

6 United States Code, is amended by adding at the 

7 end the following new section: 

8 ‘‘§ 4713. Prohibition on criminal history inquiries by 

9 contractors prior to conditional offer 

10 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIR11 IES.— 

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graphs (2) and (3), an executive agency— 

14 ‘‘(A) may not require that an individual or 

15 sole proprietor who submits a bid for a contract 

16 to disclose criminal history record information 

17 regarding that individual or sole proprietor be18 fore determining the apparent awardee; and 

19 ‘‘(B) shall require, as a condition of receiv20 ing a Federal contract and receiving payments 

21 under such contract that the contractor may 

22 not verbally, or through written form, request 

23 the disclosure of criminal history record infor24 mation regarding an applicant for a position re25 lated to work under such contract before the 


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1 contractor extends a conditional offer to the ap2 plicant. 

3 ‘‘(2) OTHERWISE REQUIRED BY LAW.—The 

4 prohibition under paragraph (1) does not apply with 

5 respect to a contract if consideration of criminal his6 tory record information prior to a conditional offer 

7 with respect to the position is otherwise required by 

8 law. 

9 ‘‘(3) EXCEPTION FOR CERTAIN POSITIONS.— 

10 ‘‘(A) IN GENERAL.—The prohibition under 

11 paragraph (1) does not apply with respect to— 

12 ‘‘(i) a contract that requires an indi13 vidual hired under the contract to access 

14 classified information or to have sensitive 

15 law enforcement or national security du16 ties; or 

17 ‘‘(ii) a position that the Administrator 

18 of General Services identifies under the 

19 regulations issued under subparagraph 

20 (B). 

21 ‘‘(B) REGULATIONS.— 

22 ‘‘(i) ISSUANCE.—Not later than 16 

23 months after the date of enactment of the 

24 Fair Chance to Compete for Jobs Act of 

25 2017, the Administrator of General ServVerDate Sep 11 2014 04:27 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S842.IS S842

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1 ices, in consultation with the Secretary of 

2 Defense, shall issue regulations identifying 

3 additional positions with respect to which 

4 the prohibition under paragraph (1) shall 

5 not apply, giving due consideration to posi6 tions that involve interaction with minors, 

7 access to sensitive information, or man8 aging financial transactions. 

9 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

10 LAWS.—The regulations issued under 

11 clause (i) shall— 

12 ‘‘(I) be consistent with, and in no 

13 way supersede, restrict, or limit the 

14 application of title VII of the Civil 

15 Rights Act of 1964 (42 U.S.C. 2000e 

16 et seq.) or other relevant Federal civil 

17 rights laws; and 

18 ‘‘(II) ensure that all hiring activi19 ties conducted pursuant to the regula20 tions are conducted in a manner con21 sistent with relevant Federal civil 

22 rights laws. 

23 ‘‘(b) COMPLAINT PROCEDURES.—The Administrator 

24 of General Services shall establish and publish procedures 

25 under which an applicant for a position with a Federal 


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1 contractor may submit to the Administrator a complaint, 

2 or any other information, relating to compliance by the 

3 contractor with subsection (a)(1)(B). 

4 ‘‘(c) ACTION FOR VIOLATIONS OF PROHIBITION ON

5 CRIMINAL HISTORY INQUIRIES.— 

6 ‘‘(1) FIRST VIOLATION.—If the head of an exec7 utive agency determines that a contractor has vio8 lated subsection (a)(1)(B), such head shall— 

9 ‘‘(A) notify the contractor; 

10 ‘‘(B) provide 30 days after such notifica11 tion for the contractor to appeal the determina12 tion; and 

13 ‘‘(C) issue a written warning to the con14 tractor that includes a description of the viola15 tion and the additional remedies that may apply 

16 for subsequent violations. 

17 ‘‘(2) SUBSEQUENT VIOLATION.—If the head of 

18 an executive agency determines that a contractor 

19 that was subject to paragraph (1) has committed a 

20 subsequent violation of subsection (a)(1)(B), such 

21 head shall notify the contractor, shall provide 30 

22 days after such notification for the contractor to ap23 peal the determination, and, in consultation with the 

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1 ing on the severity of the infraction and the contrac2 tor’s history of violations, including— 

3 ‘‘(A) providing written guidance to the 

4 contractor that the contractor’s eligibility for 

5 contracts requires compliance with this section; 

6 ‘‘(B) requiring that the contractor respond 

7 within 30 days affirming that the contractor is 

8 taking steps to comply with this section; and 

9 ‘‘(C) suspending payment under the con10 tract for which the applicant was being consid11 ered until the contractor demonstrates compli12 ance with this section. 

13 ‘‘(d) DEFINITIONS.—In this section: 

14 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi15 tional offer’ means an offer of employment for a po16 sition related to work under a contract that is condi17 tioned upon the results of a criminal history inquiry. 

18 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA19 TION.—The term ‘criminal history record informa20 tion’ has the meaning given that term in section 

21 9201 of title 5.’’. 

22 (2) CLERICAL AMENDMENT.—The table of sec23 tions for chapter 47 of title 41, United States Code, 

24 is amended by inserting after the item relating to 

25 section 4712 the following new item: 


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‘‘4713. Prohibition on criminal history inquiries by contractors prior to conditional offer.’’. 

1 (3) EFFECTIVE DATE.—Section 4713 of title 

2 41, United States Code, as added by paragraph (1), 

3 shall apply with respect to contracts awarded pursu4 ant to solicitations issued after the effective date de5 scribed in section 2(b)(2) of this Act. 

6 (b) DEFENSE CONTRACTS.— 

7 (1) IN GENERAL.—Chapter 137 of title 10, 

8 United States Code, is amended by adding at the 

9 end the following new section: 

10 ‘‘§ 2339A. Prohibition on criminal history inquiries by 

11 contractors prior to conditional offer 

12 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIR13 IES.— 

14 ‘‘(1) IN GENERAL.—Except as provided in para15 graphs (2) and (3), the head of an agency— 

16 ‘‘(A) may not require that an individual or 

17 sole proprietor who submits a bid for a contract 

18 to disclose criminal history record information 

19 regarding that individual or sole proprietor be20 fore determining the apparent awardee; and 

21 ‘‘(B) shall require as a condition of receiv22 ing a Federal contract and receiving payments 

23 under such contract that the contractor may 

24 not verbally or through written form request 


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1 the disclosure of criminal history record infor2 mation regarding an applicant for a position re3 lated to work under such contract before such 

4 contractor extends a conditional offer to the ap5 plicant. 

6 ‘‘(2) OTHERWISE REQUIRED BY LAW.—The 

7 prohibition under paragraph (1) does not apply with 

8 respect to a contract if consideration of criminal his9 tory record information prior to a conditional offer 

10 with respect to the position is otherwise required by 

11 law. 

12 ‘‘(3) EXCEPTION FOR CERTAIN POSITIONS.— 

13 ‘‘(A) IN GENERAL.—The prohibition under 

14 paragraph (1) does not apply with respect to— 

15 ‘‘(i) a contract that requires an indi16 vidual hired under the contract to access 

17 classified information or to have sensitive 

18 law enforcement or national security du19 ties; or 

20 ‘‘(ii) a position that the Secretary of 

21 Defense identifies under the regulations 

22 issued under subparagraph (B). 

23 ‘‘(B) REGULATIONS.— 

24 ‘‘(i) ISSUANCE.—Not later than 16 

25 months after the date of enactment of the 


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1 Fair Chance to Compete for Jobs Act of 

2 2017, the Secretary of Defense, in con3 sultation with the Administrator of Gen4 eral Services, shall issue regulations identi5 fying additional positions with respect to 

6 which the prohibition under paragraph (1) 

7 shall not apply, giving due consideration to 

8 positions that involve interaction with mi9 nors, access to sensitive information, or 

10 managing financial transactions. 

11 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

12 LAWS.—The regulations issued under 

13 clause (i) shall— 

14 ‘‘(I) be consistent with, and in no 

15 way supersede, restrict, or limit the 

16 application of title VII of the Civil 

17 Rights Act of 1964 (42 U.S.C. 2000e 

18 et seq.) or other relevant Federal civil 

19 rights laws; and 

20 ‘‘(II) ensure that all hiring activi21 ties conducted pursuant to the regula22 tions are conducted in a manner con23 sistent with relevant Federal civil 

24 rights laws. 


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1 ‘‘(b) COMPLAINT PROCEDURES.—The Secretary of 

2 Defense shall establish and publish procedures under 

3 which an applicant for a position with a Department of 

4 Defense contractor may submit a complaint, or any other 

5 information, relating to compliance by the contractor with 

6 subsection (a)(1)(B). 

7 ‘‘(c) ACTION FOR VIOLATIONS OF PROHIBITION ON

8 CRIMINAL HISTORY INQUIRIES.— 

9 ‘‘(1) FIRST VIOLATION.—If the Secretary of 

10 Defense determines that a contractor has violated 

11 subsection (a)(1)(B), the Secretary shall— 

12 ‘‘(A) notify the contractor; 

13 ‘‘(B) provide 30 days after such notifica14 tion for the contractor to appeal the determina15 tion; and 

16 ‘‘(C) issue a written warning to the con17 tractor that includes a description of the viola18 tion and the additional remedies that may apply 

19 for subsequent violations. 

20 ‘‘(2) SUBSEQUENT VIOLATIONS.—If the Sec21 retary of Defense determines that a contractor that 

22 was subject to paragraph (1) has committed a sub23 sequent violation of subsection (a)(1)(B), the Sec24 retary shall notify the contractor, shall provide 30 

25 days after such notification for the contractor to apVerDate Sep 11 2014 04:27 Apr 11, 2017 Jkt 069200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S842.IS S842

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1 peal the determination, and, in consultation with the 

2 relevant Federal agencies, may take actions, depend3 ing on the severity of the infraction and the contrac4 tor’s history of violations, including— 

5 ‘‘(A) providing written guidance to the 

6 contractor that the contractor’s eligibility for 

7 contracts requires compliance with this section; 

8 ‘‘(B) requiring that the contractor respond 

9 within 30 days affirming that the contractor is 

10 taking steps to comply with this section; and 

11 ‘‘(C) suspending payment under the con12 tract for which the applicant was being consid13 ered until the contractor demonstrates compli14 ance with this section. 

15 ‘‘(d) DEFINITIONS.—In this section: 

16 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi17 tional offer’ means an offer of employment for a po18 sition related to work under a contract that is condi19 tioned upon the results of a criminal history inquiry. 

20 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA21 TION.—The term ‘criminal history record informa22 tion’ has the meaning given that term in section 

23 9201 of title 5.’’. 

24 (2) EFFECTIVE DATE.—Section 2339A(a) of 

25 title 10, United States Code, as added by paragraph 


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1 (1), shall apply with respect to contracts awarded 

2 pursuant to solicitations issued after the effective 

3 date described in section 2(b)(2) of this Act. 

4 (3) CLERICAL AMENDMENT.—The table of sec5 tions for chapter 137 of title 10, United States 

6 Code, is amended by inserting after the item relating 

7 to section 2339 the following new item: 

‘‘2339A. Prohibition on criminal history inquiries by contractors prior to conditional offer.’’. 

8 (c) REVISIONS TO FEDERAL ACQUISITION REGULA9 TION.— 

10 (1) IN GENERAL.—Not later than 18 months 

11 after the date of enactment of this Act, the Federal 

12 Acquisition Regulatory Council shall revise the Fed13 eral Acquisition Regulation to implement section 

14 4713 of title 41, United States Code, and section 

15 2339A of title 10, United States Code, as added by 

16 this section. 

17 (2) CONSISTENCY WITH OFFICE OF PERSONNEL

18 MANAGEMENT REGULATIONS.—The Federal Acquisi19 tion Regulatory Council shall revise the Federal Ac20 quisition Regulation under paragraph (1) to be con21 sistent with the regulations issued by the Director of 

22 the Office of Personnel Management under section 

23 2(b)(1) to the maximum extent practicable. The 

24 Council shall include together with such revision an 


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1 explanation of any substantive modification of the 

2 Office of Personnel Management regulations, includ3 ing an explanation of how such modification will 

4 more effectively implement the rights and protec5 tions under this section. 

6 SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FOR7 MERLY INCARCERATED IN FEDERAL PRIS8 ONS. 

9 (a) DEFINITION.—In this section, the term ‘‘covered 

10 individual’’— 

11 (1) means an individual who has completed a 

12 term of imprisonment in a Federal prison for a Fed13 eral criminal offense; and 

14 (2) does not include an alien who is or will be 

15 removed from the United States for a violation of 

16 the immigration laws (as such term is defined in sec17 tion 101 of the Immigration and Nationality Act (8 

18 U.S.C. 1101)). 

19 (b) STUDY AND REPORT REQUIRED.—The Director 

20 of the Bureau of Justice Statistics, in coordination with 

21 the Director of the Bureau of the Census, shall— 

22 (1) not later than 6 months after the date of 

23 enactment of this Act, design and initiate a study on 

24 the employment of covered individuals after their re25 lease from Federal prison, including by collecting— 


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1 (A) demographic data on covered individ2 uals, including race, age, and sex; and 

3 (B) data on employment and earnings of 

4 covered individuals who are denied employment, 

5 including the reasons for the denials; and 

6 (2) not later than 2 years after the date of en7 actment of this Act, and every 5 years thereafter, 

8 submit a report that does not include any personally 

9 identifiable information on the study conducted 

10 under paragraph (1) to— 

11 (A) the Committee on Homeland Security 

12 and Governmental Affairs of the Senate; 

13 (B) the Committee on Health, Education, 

14 Labor, and Pensions of the Senate; 

15 (C) the Committee on Oversight and Gov16 ernment Reform of the House of Representa17 tives; and 

18 (D) the Committee on Education and the 

19 Workforce of the House of Representatives. 

Æ 


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