II 

Calendar No. 228 

115TH CONGRESS 

1ST SESSION S. 842 

[Report No. 115–162] 

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, Mr. PORTMAN, Mr. LEAHY, and Mr. PETERS) introduced the 

following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

SEPTEMBER 25, 2017 

Reported by Mr. JOHNSON, with amendments 

[Omit the part struck through and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fair Chance to Com3 pete for Jobs Act of 2017’’ or the ‘‘Fair Chance Act’’. 

4 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

5 PRIOR TO CONDITIONAL OFFER FOR FED6 ERAL EMPLOYMENT. 

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

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

9 following: 

10 ‘‘CHAPTER 92—PROHIBITION ON CRIMI11 NAL HISTORY INQUIRIES PRIOR TO 

12 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. 

13 ‘‘§ 9201. Definitions 

14 ‘‘In this chapter— 

15 ‘‘(1) the term ‘agency’ means ‘Executive agen16 cy’ as such term is defined in section 105 and in17 cludes— 

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

19 the Postal Regulatory Commission; and 

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

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

22 employee in the executive branch of the Government 


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1 of the United States that has authority to make ap2 pointments to positions in the civil service; 

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

4 of employment in a position in the civil service that 

5 is conditioned upon the results of a criminal history 

6 inquiry; 

7 ‘‘(4) the term ‘criminal history record informa8 tion’— 

9 ‘‘(A) except as provided in subparagraph 

10 (B) subparagraphs (B) and (C), has the mean11 ing given the term in section 9101(a); 

12 ‘‘(B) includes any information described in 

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

14 been sealed or expunged pursuant to law; and 

15 ‘‘(C) includes information collected by a 

16 criminal justice agency, relating to an act or al17 leged act of juvenile delinquency, that is analo18 gous to criminal history record information (in19 cluding such information that has been sealed 

20 or expunged pursuant to law); and 

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

22 given the term in section 7501. 


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1 ‘‘§ 9202. Limitations on requests for criminal history 

2 record information 

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

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

5 of an agency may not request, in oral or written form (in6 cluding through the Declaration for Federal Employment 

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

8 any similar successor form ), including through the 

9 USAJOBS Internet Web site, or any other electronic 

10 means, ) that an applicant for an appointment to a posi11 tion in the civil service disclose criminal history record in12 formation regarding the applicant before the appointing 

13 authority extends a conditional offer to the applicant. 

14 ‘‘(b) OTHERWISE REQUIRED BY LAW.—The prohibi15 tion under subsection (a) shall not apply with respect to 

16 an applicant for a position in the civil service if consider17 ation of criminal history record information prior to a con18 ditional offer with respect to the position is otherwise re19 quired by law. 

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

21 ‘‘(1) IN GENERAL.—The prohibition under sub22 section (a) shall not apply with respect to an appli23 cant for an appointment to a position— 

24 ‘‘(A) that requires a determination of eligi25 bility described in clause (i), (ii), or (iii) of sec26 tion 9101(b)(1)(A); 


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

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

3 ‘‘(C) identified by the Director of the Of4 fice of Personnel Management in the regula5 tions issued under paragraph (2). 

6 ‘‘(2) REGULATIONS.— 

7 ‘‘(A) ISSUANCE.—The Director of the Of8 fice of Personnel Management shall issue regu9 lations identifying additional positions with re10 spect to which the prohibition under subsection 

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

12 positions that involve interaction with minors, 

13 access to sensitive information, or managing fi14 nancial transactions. 

15 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS

16 LAWS.—The regulations issued under subpara17 graph (A) shall— 

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

19 supersede, restrict, or limit the application 

20 of title VII of the Civil Rights Act of 1964 

21 (42 U.S.C. 2000e et seq.) or other relevant 

22 Federal civil rights laws; and 

23 ‘‘(ii) ensure that all hiring activities 

24 conducted pursuant to the regulations are 


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1 conducted in a manner consistent with rel2 evant Federal civil rights laws. 

3 ‘‘§ 9203. Agency policies; complaint procedures 

4 ‘‘The Director of the Office of Personnel Manage5 ment shall— 

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

7 assist employees of agencies in complying with sec8 tion 9202 and the regulations issued pursuant to 

9 such section; and 

10 ‘‘(2) establish and publish procedures under 

11 which an applicant for an appointment to a position 

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

13 other information, relating to compliance by an em14 ployee of an agency with section 9202. 

15 ‘‘§ 9204. Adverse action 

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

17 of Personnel Management determines, after notice and an 

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

19 of an agency has violated section 9202, the Director 

20 shall— 

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

22 that includes a description of the violation and the 

23 additional penalties that may apply for subsequent 

24 violations; and 


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

2 personnel record file. 

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

4 the Office of Personnel Management determines, after no5 tice and an opportunity for a hearing on the record, that 

6 an employee that was subject to subsection (a) has com7 mitted a subsequent violation of section 9202, the Director 

8 may take the following action: 

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

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

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

12 employee for a period of more than 7 days. 

13 ‘‘(3) For a fourth violation— 

14 ‘‘(A) suspension of the employee for a pe15 riod of more than 7 days; and 

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

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

18 ‘‘(4) For a fifth violation— 

19 ‘‘(A) suspension of the employee for a pe20 riod of more than 7 days; and 

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

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

23 ‘‘(5) For any subsequent violation— 

24 ‘‘(A) suspension of the employee for a pe25 riod of more than 7 days; and 


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

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

3 ‘‘§ 9205. Procedures 

4 ‘‘(a) APPEALS.—The Director of the Office of Per5 sonnel Management shall by rule establish procedures pro6 viding for an appeal from any adverse action taken under 

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

8 the action. 

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

10 action taken under section 9204 (including a determina11 tion in an appeal from such an action under subsection 

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

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

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

15 section, appeal or judicial review. 

16 ‘‘§ 9206. Rules of construction 

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

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

19 agency to request the disclosure of information de20 scribed under subparagraphs (B) and (C) of section 

21 9201(4); or 

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

23 person.’’. 

24 (b) REGULATIONS; EFFECTIVE DATE.— 


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

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

3 the Office of Personnel Management shall issue such 

4 regulations as are necessary to carry out chapter 92 

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

6 Act). 

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

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

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

10 of enactment of this Act. 

11 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

14 chapter 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

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

15 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

16 (1) IN GENERAL.—The Congressional Account17 ability Act of 1995 (2 U.S.C. 1301 et seq.) is 

18 amended— 

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

20 by adding at the end the following: 

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

22 Code.’’; 

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

24 1317) as section 208; and 


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1 (C) by inserting after section 206 (2 

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

3 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI4 NAL HISTORY INQUIRIES. 

5 ‘‘(a) DEFINITIONS.—In this section, the terms ‘agen6 cy’, ‘criminal history record information’, and ‘suspension’ 

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

8 5, United States Code, except as otherwise modified by 

9 this section. 

10 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR11 IES.— 

12 ‘‘(1) IN GENERAL.— 

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

14 subparagraph (B), an employee of an employing 

15 office may not request that an applicant for em16 ployment as a covered employee disclose crimi17 nal history record information if the request 

18 would be prohibited under section 9202 of title 

19 5, United States Code, if made by an employee 

20 of an agency. 

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

22 of applying that section 9202 under subpara23 graph (A), a reference in that section 9202 to 

24 a conditional offer shall be considered to be an 

25 offer of employment as a covered employee that 


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1 is conditioned upon the results of a criminal 

2 history inquiry. 

3 ‘‘(2) RULES OF CONSTRUCTION.—The provi4 sions of section 9206 of title 5, United States Code, 

5 shall apply to employing offices, consistent with reg6 ulations issued under subsection (d). 

7 ‘‘(c) REMEDY.— 

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

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

10 be appropriate if awarded under section 9204 of title 

11 5, United States Code, if the violation had been 

12 committed by an employee of an agency, consistent 

13 with regulations issued under subsection (d), except 

14 that the reference in that section to a suspension 

15 shall be considered to be a suspension with the level 

16 of compensation provided for a covered employee 

17 who is taking unpaid leave under section 202. 

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

19 applicant for employment as a covered employee who 

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

21 the provisions of title IV (other than sections 

22 404(2), 407, and 408), consistent with regulations 

23 issued under subsection (d). 

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


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

2 after the date of enactment of the Fair Chance to 

3 Compete for Jobs Act of 2017, the Board shall, pur4 suant to section 304, issue regulations to implement 

5 this section. 

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

7 The regulations issued under paragraph (1) shall be 

8 the same as substantive regulations issued by the 

9 Director of the Office of Personnel Management 

10 under section 2(b)(1) of the Fair Chance to Com11 pete for Jobs Act of 2017 to implement the statu12 tory provisions referred to in subsections (a) through 

13 (c) except to the extent that the Board may deter14 mine, for good cause shown and stated together with 

15 the regulation, that a modification of such regula16 tions would be more effective for the implementation 

17 of the rights and protections under this section. 

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

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

20 on which section 9202 of title 5, United States Code, ap21 plies with respect to agencies.’’. 

22 (2) CLERICAL AMENDMENT.—The table of con23 tents of such Act is amended— 


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1 (A) by redesignating the item relating to 

2 section 207 as the item relating to section 208; 

3 and 

4 (B) by inserting after the item relating to 

5 section 206 the following new item: 

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

6 (2) CLERICAL AMENDMENTS.— 

7 (A) The table of contents in section 1(b) of 

8 the Congressional Accountability Act of 1995 

9 (Public Law 104–1; 109 Stat. 3) is amended— 

10 (i) by redesignating the item relating 

11 to section 207 as the item relating to section 

12 208; and 

13 (ii) by inserting after the item relating 

14 to section 206 the following new item: 

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

15 (B) Section 62(e)(2) of the Internal Revenue 

16 Code of 1986 is amended by striking ‘‘207’’ and 

17 inserting ‘‘208’’. 

18 (e) APPLICATION TO JUDICIAL BRANCH.— 

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

20 United States Code, is amended by adding at the 

21 end the following: 

22 ‘‘(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIR23 IES.— 

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


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1 ‘‘(A) the terms ‘agency’ and ‘criminal his2 tory record information’ have the meanings 

3 given those terms in section 9201 of title 5; 

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

5 employee of the judicial branch of the United 

6 States Government, other than— 

7 ‘‘(i) any judge or justice who is enti8 tled to hold office during good behavior; 

9 ‘‘(ii) a United States magistrate 

10 judge; or 

11 ‘‘(iii) a bankruptcy judge; and 

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

13 office or entity of the judicial branch of the 

14 United States Government that employs covered 

15 employees. 

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

17 not request that an applicant for employment as a 

18 covered employee disclose criminal history record in19 formation if the request would be prohibited under 

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

21 agency. 

22 ‘‘(3) EMPLOYING OFFICE POLICIES; COMPLAINT

23 PROCEDURE.—The provisions of sections 9203 and 

24 9206 of title 5 shall apply to employing offices and 

25 to applicants for employment as covered employees, 


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1 consistent with regulations issued by the Director to 

2 implement this subsection. 

3 ‘‘(4) ADVERSE ACTION.— 

4 ‘‘(A) ADVERSE ACTION.—The Director 

5 may take such adverse action with respect to a 

6 covered employee who violates paragraph (2) as 

7 would be appropriate under section 9204 of 

8 title 5 if the violation had been committed by 

9 an employee of an agency. 

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

11 rule establish procedures providing for an ap12 peal from any adverse action taken under sub13 paragraph (A) by not later than 30 days after 

14 the date of the action. 

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

16 Except as provided in subparagraph (B), an ad17 verse action taken under subparagraph (A) (in18 cluding a determination in an appeal from such 

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

20 subject to appeal or judicial review. 

21 ‘‘(5) REGULATIONS TO BE ISSUED.— 

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

23 months after the date of enactment of the Fair 

24 Chance to Compete for Jobs Act of 2017, the 


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1 Director shall issue regulations to implement 

2 this subsection. 

3 ‘‘(B) PARALLEL WITH AGENCY REGULA4 TIONS.—The regulations issued under subpara5 graph (A) shall be the same as substantive reg6 ulations promulgated by the Director of the Of7 fice of Personnel Management under section 

8 2(b)(1) of the Fair Chance to Compete for Jobs 

9 Act of 2017 except to the extent that the Direc10 tor of the Administrative Office of the United 

11 States Courts may determine, for good cause 

12 shown and stated together with the regulation, 

13 that a modification of such regulations would be 

14 more effective for the implementation of the 

15 rights and protections under this subsection. 

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

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

18 section 9202 of title 5 applies with respect to agen19 cies.’’. 

20 SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY 

21 CONTRACTORS PRIOR TO CONDITIONAL 

22 OFFER. 

23 (a) CIVILIAN AGENCY CONTRACTS.— 


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

2 United States Code, is amended by adding at the 

3 end the following new section: 

4 ‘‘§ 4713. Prohibition on criminal history inquiries by 

5 contractors prior to conditional offer 

6 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIR7 IES.— 

8 ‘‘(1) IN GENERAL.—Except as provided in para9 graphs (2) and (3), an executive agency— 

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

11 sole proprietor who submits a bid for a contract 

12 to disclose criminal history record information 

13 regarding that individual or sole proprietor be14 fore determining the apparent awardee; and 

15 ‘‘(B) shall require, as a condition of receiv16 ing a Federal contract and receiving payments 

17 under such contract that the contractor may 

18 not verbally, or through written form, request 

19 the disclosure of criminal history record infor20 mation regarding an applicant for a position re21 lated to work under such contract before the 

22 contractor extends a conditional offer to the ap23 plicant. 

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

25 prohibition under paragraph (1) does not apply with 


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1 respect to a contract if consideration of criminal his2 tory record information prior to a conditional offer 

3 with respect to the position is otherwise required by 

4 law. 

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

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

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

8 ‘‘(i) a contract that requires an indi9 vidual hired under the contract to access 

10 classified information or to have sensitive 

11 law enforcement or national security du12 ties; or 

13 ‘‘(ii) a position that the Administrator 

14 of General Services identifies under the 

15 regulations issued under subparagraph 

16 (B). 

17 ‘‘(B) REGULATIONS.— 

18 ‘‘(i) ISSUANCE.—Not later than 16 

19 months after the date of enactment of the 

20 Fair Chance to Compete for Jobs Act of 

21 2017, the Administrator of General Serv22 ices, in consultation with the Secretary of 

23 Defense, shall issue regulations identifying 

24 additional positions with respect to which 

25 the prohibition under paragraph (1) shall 


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1 not apply, giving due consideration to posi2 tions that involve interaction with minors, 

3 access to sensitive information, or man4 aging financial transactions. 

5 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

6 LAWS.—The regulations issued under 

7 clause (i) shall— 

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

9 way supersede, restrict, or limit the 

10 application of title VII of the Civil 

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

12 et seq.) or other relevant Federal civil 

13 rights laws; and 

14 ‘‘(II) ensure that all hiring activi15 ties conducted pursuant to the regula16 tions are conducted in a manner con17 sistent with relevant Federal civil 

18 rights laws. 

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

20 of General Services shall establish and publish procedures 

21 under which an applicant for a position with a Federal 

22 contractor may submit to the Administrator a complaint, 

23 or any other information, relating to compliance by the 

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


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

2 CRIMINAL HISTORY INQUIRIES.— 

3 ‘‘(1) FIRST VIOLATION.—If the head of an exec4 utive agency determines that a contractor has vio5 lated subsection (a)(1)(B), such head shall— 

6 ‘‘(A) notify the contractor; 

7 ‘‘(B) provide 30 days after such notifica8 tion for the contractor to appeal the determina9 tion; and 

10 ‘‘(C) issue a written warning to the con11 tractor that includes a description of the viola12 tion and the additional remedies that may apply 

13 for subsequent violations. 

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

15 an executive agency determines that a contractor 

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

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

18 head shall notify the contractor, shall provide 30 

19 days after such notification for the contractor to ap20 peal the determination, and, in consultation with the 

21 relevant Federal agencies, may take actions, depend22 ing on the severity of the infraction and the contrac23 tor’s history of violations, including— 


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1 ‘‘(A) providing written guidance to the 

2 contractor that the contractor’s eligibility for 

3 contracts requires compliance with this section; 

4 ‘‘(B) requiring that the contractor respond 

5 within 30 days affirming that the contractor is 

6 taking steps to comply with this section; and 

7 ‘‘(C) suspending payment under the con8 tract for which the applicant was being consid9 ered until the contractor demonstrates compli10 ance with this section. 

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

12 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi13 tional offer’ means an offer of employment for a po14 sition related to work under a contract that is condi15 tioned upon the results of a criminal history inquiry. 

16 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA17 TION.—The term ‘criminal history record informa18 tion’ has the meaning given that term in section 

19 9201 of title 5.’’. 

20 (2) CLERICAL AMENDMENT.—The table of sec21 tions for chapter 47 of title 41, United States Code, 

22 is amended by inserting after the item relating to 

23 section 4712 the following new item: 

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


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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 

25 the disclosure of criminal history record inforVerDate Sep 11 2014 23:37 Sep 25, 2017 Jkt 069200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S842.RS S842

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1 mation regarding an applicant for a position re2 lated to work under such contract before such 

3 contractor extends a conditional offer to the ap4 plicant. 

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

6 prohibition under paragraph (1) does not apply with 

7 respect to a contract if consideration of criminal his8 tory record information prior to a conditional offer 

9 with respect to the position is otherwise required by 

10 law. 

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

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

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

14 ‘‘(i) a contract that requires an indi15 vidual hired under the contract to access 

16 classified information or to have sensitive 

17 law enforcement or national security du18 ties; or 

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

20 Defense identifies under the regulations 

21 issued under subparagraph (B). 

22 ‘‘(B) REGULATIONS.— 

23 ‘‘(i) ISSUANCE.—Not later than 16 

24 months after the date of enactment of the 

25 Fair Chance to Compete for Jobs Act of 


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1 2017, the Secretary of Defense, in con2 sultation with the Administrator of Gen3 eral Services, shall issue regulations identi4 fying additional positions with respect to 

5 which the prohibition under paragraph (1) 

6 shall not apply, giving due consideration to 

7 positions that involve interaction with mi8 nors, access to sensitive information, or 

9 managing financial transactions. 

10 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

11 LAWS.—The regulations issued under 

12 clause (i) shall— 

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

14 way supersede, restrict, or limit the 

15 application of title VII of the Civil 

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

17 et seq.) or other relevant Federal civil 

18 rights laws; and 

19 ‘‘(II) ensure that all hiring activi20 ties conducted pursuant to the regula21 tions are conducted in a manner con22 sistent with relevant Federal civil 

23 rights laws. 

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

25 Defense shall establish and publish procedures under 


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1 which an applicant for a position with a Department of 

2 Defense contractor may submit a complaint, or any other 

3 information, relating to compliance by the contractor with 

4 subsection (a)(1)(B). 

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

6 CRIMINAL HISTORY INQUIRIES.— 

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

8 Defense determines that a contractor has violated 

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

10 ‘‘(A) notify the contractor; 

11 ‘‘(B) provide 30 days after such notifica12 tion for the contractor to appeal the determina13 tion; and 

14 ‘‘(C) issue a written warning to the con15 tractor that includes a description of the viola16 tion and the additional remedies that may apply 

17 for subsequent violations. 

18 ‘‘(2) SUBSEQUENT VIOLATIONS.—If the Sec19 retary of Defense determines that a contractor that 

20 was subject to paragraph (1) has committed a sub21 sequent violation of subsection (a)(1)(B), the Sec22 retary shall notify the contractor, shall provide 30 

23 days after such notification for the contractor to ap24 peal the determination, and, in consultation with the 

25 relevant Federal agencies, may take actions, dependVerDate Sep 11 2014 23:37 Sep 25, 2017 Jkt 069200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S842.RS S842

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•S 842 RS

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

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

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


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1 pursuant to solicitations issued after the effective 

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

3 (3) CLERICAL AMENDMENT.—The table of sec4 tions for chapter 137 of title 10, United States 

5 Code, is amended by inserting after the item relating 

6 to section 2339 the following new item: 

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

7 (c) REVISIONS TO FEDERAL ACQUISITION REGULA8 TION.— 

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

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

11 Acquisition Regulatory Council shall revise the Fed12 eral Acquisition Regulation to implement section 

13 4713 of title 41, United States Code, and section 

14 2339A of title 10, United States Code, as added by 

15 this section. 

16 (2) CONSISTENCY WITH OFFICE OF PERSONNEL

17 MANAGEMENT REGULATIONS.—The Federal Acquisi18 tion Regulatory Council shall revise the Federal Ac19 quisition Regulation under paragraph (1) to be con20 sistent with the regulations issued by the Director of 

21 the Office of Personnel Management under section 

22 2(b)(1) to the maximum extent practicable. The 

23 Council shall include together with such revision an 

24 explanation of any substantive modification of the 


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1 Office of Personnel Management regulations, includ2 ing an explanation of how such modification will 

3 more effectively implement the rights and protec4 tions under this section. 

5 SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FOR6 MERLY INCARCERATED IN FEDERAL PRIS7 ONS. 

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

9 individual’’— 

10 (1) means an individual who has completed a 

11 term of imprisonment in a Federal prison for a Fed12 eral criminal offense; and 

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

14 removed from the United States for a violation of 

15 the immigration laws (as such term is defined in sec16 tion 101 of the Immigration and Nationality Act (8 

17 U.S.C. 1101)). 

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

19 of the Bureau of Justice Statistics, in coordination with 

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

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

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

23 the employment of covered individuals after their re24 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. 


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Calendar No. 228 

115TH CONGRESS 

1ST SESSION S. 842 

[Report No. 115–162] 

A BILL 

To prohibit Federal agencies and Federal contractional offer, and for other purposes. mation before the applicant has received a condi- ployment disclose criminal history record infor- tors from requesting that an applicant for emSEPTEMBER 25, 2017 

Reported with amendments 


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