U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 116TH CONGRESS

1st Session 

REPORT

2019

116–33 

Calendar No. 69 

FAIR CHANCE ACT 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 387 

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 

APRIL 10, 2019.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MITT ROMNEY, Utah 

RICK SCOTT, Florida 

MICHAEL B. ENZI, Wyoming 

JOSH HAWLEY, Missouri 

GARY C. PETERS, Michigan 

THOMAS R. CARPER, Delaware 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

KYRSTEN SINEMA, Arizona 

JACKY ROSEN, Nevada 

GABRIELLE D’ADAMO SINGER, Staff Director 

JOSEPH C. FOLIO, III, Chief Counsel 

PATRICK J. BAILEY, Chief Counsel for Governmental Affairs 

DAVID M. WEINBERG, Minority Staff Director 

ZACHARY I. SCHRAM, Minority Chief Counsel 

ASHLEY E. POLING, Minority Director of Governmental Affairs 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 69 

116TH CONGRESS REPORT " ! SENATE 1st Session 116–33 

FAIR CHANCE ACT 

APRIL 10, 2019.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 387] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 387) 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, 

having considered the same, reports favorably thereon with an 

amendment and recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 8 

IV. Section-by-Section Analysis .......................................................................... 8 

V. Evaluation of Regulatory Impact .................................................................. 9 

VI. Congressional Budget Office Cost Estimate ................................................ 10 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 11 

I. PURPOSE AND SUMMARY

S. 387, the Fair Chance to Compete for Jobs Act of 2019, or the 

Fair Chance Act, gives formerly incarcerated individuals a fair 

chance to compete for employment in the Federal Government and 

on Federal contracts by prohibiting Federal agencies and prime 

Federal contractors from requesting criminal history information 

from job applicants until after they have issued a conditional offer 

of employment. By granting individuals with a criminal history the 

opportunity to compete for Federal jobs without first considering 

their criminal history, the legislation seeks to improve employment 


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1On October 7, 2015, the Committee approved S. 2021, the Fair Chance to Compete for Jobs 

Act, and on April 5, 2017, the Committee approved S. 842, the Fair Chance to Compete for Jobs 

Act. Those bills are substantially similar to S. 387. Accordingly, this committee report is in large 

part a reproduction of Chairman Johnson’s committee reports S. Rep. No. 114-200 and S. Rep. 

No. 115-162. 2Oversight of the Bureau of Prisons: First-Hand Accounts of Challenges facing the Federal 

Prison System: Hearing Before the S. Comm. on Homeland Sec., and Governmental Affairs, 

114th Cong. (2015). 3Federal Bureau of Prisons, Federal Inmate Statistics, http://www.bop.gov/about/statistics/population_statistics.jsp (last visited Mar. 4, 2019); Bureau of Justice Statistics, NCJ251149, Prisoners in 2016 (January 2018), available at https://www.bjs.gov/index.cfm?ty=pbdetail&iid=6187 

[hereinafter BJS report]. 4 Nathan James, Cong. Research Serv., R42486, Appropriations for the Bureau of Prisons 

(BOP): In Brief (2016). 5 Id. at 9 (Table A-1). 6 Id. at 1. 7 According to BJS, state and Federal prisons admitted 606,000 prisoners with sentences exceeding one year in 2015, representing a 0.5 percent decrease from the total admissions in 2014 

(608,300). See BJS Report at 10. 8The total Federal inmate population in 2005 was 187,618. See BJS report at 3, table 1. As 

of February 28, 2019, the total number of federal prisoners was 180,469. See Federal Bureau 

of Prisons, Statistics, https://www.bop.gov/about/statistics/population_statistics.jsp (last visited 

March 4, 2019). 

prospects for these individuals, thereby reducing recidivism and increasing public safety. 

S. 387 includes exceptions for certain positions for which access 

to criminal history information is required by law, jobs involving 

law enforcement and national security duties, and other commonsense exceptions. The bill also requires the United States Census 

Bureau and the Bureau of Justice Statistics to issue a report on 

the employment of formerly incarcerated individuals.1

II. BACKGROUND AND THE NEED FOR LEGISLATION

Rise in prison population 

On August 4, 2015, the Committee held a hearing titled Oversight of the Bureau of Prisons: First-Hand Accounts of Challenges 

Facing the Federal Prison System.2 The hearing outlined a number 

of problems facing the Federal prison system and state and local 

systems. The United States has the world’s largest prison population, with approximately 180,000 people incarcerated in Federal 

facilities, and approximately 1.3 million people in state facilities.3

Since the 1980s, the Bureau of Prisons (BOP) has experienced 

rapid growth in terms of both the number of inmates under its jurisdiction, and its appropriations. Between fiscal year (FY) 1980 

and FY2013, the Federal inmate population increased from approximately 25,000 inmates to 219,000 inmates—a 790 percent increase.4 In FY1980, BOP appropriations were just under $330 million.5 By FY2016, the BOP’s budget had risen over $7 billion—a 

783 percent increase—to its current level of $7.5 billion.6

Rise in population of formerly incarcerated individuals 

The rise in inmate population has seen a commensurate rise in 

the number of formerly incarcerated people living in communities 

across the country. According to the Bureau of Justice Statistics 

(BJS), 2016 marked the fourth consecutive year of decline in the 

Federal prisoner population.7 Population levels are at their lowest 

since 2005.8 The BJS found that state and Federal prisons admitVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR033.XXX SR033

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9There were 2,300 fewer new prisoners admitted into state and Federal prisons in 2016 than 

in 2015; state and Federal prisons released 7,300 more prisoners in 2016 than they did in 2015. 

See BJS report. 10 United States Sentencing Commission, Amendments to the Sentencing Guidelines (Apr. 30, 

2014), available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20140430_RF_Amendments.pdf (Amendment 782). 11 United States Sentencing Commission, Memorandum: Summary of Key Data Regarding 

Retroactive Application of the 2014 Drug Guidelines Amendment (July 25, 2014), available at: 

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drugguidelines-amendment/20140725-Drug-Retro-Analysis.pdf. 12 Bureau of Justice Statistics, Reentry Trends in the U.S., https://www.bjs.gov/content/reentry/ 

reentry.cfm (last accessed Apr. 5, 2019). 13Department of Justice, FY 2019 Budget Request at a Glance (Mar. 15, 2018) available at: 

https://www.justice.gov/doj/fy-2018-budget-and-performance-summary. 14Supra note 4. 15Supra note 2 (statement of Charles Samuels, Dr., Bureau of Prisons). 16 Id. 

ted fewer new prisoners in 2015 than in 2014, while also releasing 

an increased number of inmates.9

In 2014, the United States Sentencing Commission (USSC) 

amended the Federal sentencing guidelines, lowering the statutory 

minimum for drug offenders.10 An additional amendment made the 

reduction retroactive, allowing nearly 46,000 Federal drug offenders sentenced before the lowered drug guidelines went into effect 

to petition for reductions to their sentences.11 The BJS found that 

95 percent of people incarcerated at the state level will be released.12 As a result, there are more individuals with criminal 

records being released back into communities. 

At the same time, the Federal Government has spent more and 

more money to maintain and operate the BOP’s facilities. As of 

FY2019, the BOP’s budget is just over 25 percent of the Department of Justice’s (DOJ) discretionary budget.13

Recent expenditure data from the BOP indicate that the overall 

per capita cost of incarceration for inmates in the Federal system 

is on the rise, having increased from $21,603 per inmate in 

FY2000, to nearly $35,000 per inmate in FY2016—an increase of 

62 percent.14 Because the BOP spends significant resources simply 

housing inmates for the duration of their sentence, they spend 

fewer resources on vocational training. At the Committee’s August 

4, 2015 hearing, the BOP Director testified that Federal inmates 

who participate in Federal Prison Industries, a vocational training 

program, are 24 percent less likely to recidivate than similar nonparticipating inmates.15 However, the hearing also revealed that 

fewer than five percent of inmates are able to participate in the 

program.16 This highlights the need to improve employment prospects for those who leave the prison system. 

With each inmate costing taxpayers nearly $35,000 annually, it 

is essential that those with criminal histories have the tools available to them upon release to seek stable employment, and avoid 

recidivating. Reducing the rate of recidivism by improving employment opportunities for the formerly incarcerated has the potential 

to reduce crime, reduce the prison population, save taxpayer dollars, and improve lives. 

The American economy pays a price for having such steep barriers to employment for people with criminal records. A 2016 Center for Economic Policy and Research study on the formerly incarcerated and the labor market found that in 2014 alone, employment losses of those with criminal records cost the economy the 


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17 Cherrie Bucknor & Alan Barber, The Price We Pay: Economic Costs of Barriers to Employment for Former Prisoners and People Convicted of Felonies, Center for Economic Policy and Research (June 2016), available at http://cepr.net/images/stories/reports/employment-prisoners-felonies-2016-06.pdf. 18 American Bar Association, Criminal Justice Section, https://www.americanbar.org/groups/ 

criminal_justice/niccc/ (last accessed Apr. 5, 2019). 19Supra, note 2 (statement of Senator Ron Johnson, Chairman). 20Matthew R. Durose, Alexia D. Cooper, PhD., & Howard N. Snyder, PhD, Bureau of Justice 

Statistics, NCJ244205, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 

2005 to 2010 (Apr. 2014). 21Dan Merica & Evan Perez, Eric Holder seeks to cut mandatory minimums, CNN (Aug. 12, 

2013, 7:03 PM), http://www.cnn.com/2013/08/12/politics/holder-mandatory-minimums/. 22Mark T. Berg & Beth M. Huebner, Reentry and the Ties that Bind: An Examination of Social Ties, Employment, and Recidivism, 28 Justice Quarterly No. 2 (Apr. 2011), available at 

http://www.pacific-gateway.org/reentry,%20employment%20and%20recidivism.pdf. 23 Aaron Yelowitz & Christopher Bollinger, Prison-to-Work: The Benefits of Intensive JobSearch Assistance for Former Inmates, Manhattan Institute Center for State and Local Leadership, Civic Report No. 96, 28 (Mar. 2015), available at http://www.manhattan-institute.org/html/ 

prison-work-5876.html. 24Pew Center on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility, The 

Pew Charitable Trusts 4, 11 (2010), available at http://www.pewtrusts.org/∼/media/legacy/ 

uploadedfiles/pcs_assets/2010/collateralcosts1pdf. 25 Id. at 4. 

equivalent of 1.7 to 1.9 million workers, and a loss of $78 to $87 

billion in gross domestic product.17

Barriers to Employment 

Formerly incarcerated people face a number of obstacles upon reentry into their communities that impede rather than encourage 

their reintegration. The American Bar Association found that there 

are over 45,000 collateral consequences that go along with a criminal conviction.18 Speaking at the August 4, 2015 hearing, Chairman Ron Johnson noted that he had met with a small group of formerly incarcerated men and that ‘‘what [he] learned was that these 

men want to turn their lives around and stay out of prison’’ but 

that there ‘‘are many challenges that people face leaving the prison 

system.’’ 19 Chief among them are barriers to employment and, consequently, income and stability. 

Studies have shown that as many as two-thirds of people released from prison between 2005 and 2010 were arrested for a new 

crime within three years, and three-quarters were arrested within 

five years.20 The DOJ estimates that roughly 40 percent of people 

formerly incarcerated in Federal prisons and over 60 percent of 

people formerly incarcerated in state prisons are re-arrested or 

have their supervision revoked within three years.21

There are many factors that increase a formerly incarcerated 

person’s likelihood of being re-incarcerated and limited employment 

opportunities are one of the strongest predictors of recidivism. Multiple studies have shown that formerly incarcerated people who 

maintain steady, legitimate employment are less likely to return to 

criminal acts upon release from prison.22 Employment has been 

found to reduce recidivism by as much as 20 percent among nonviolent offenders.23

An extensive body of research has established that a felony conviction or time in prison makes individuals significantly less employable. According to research from the Pew Charitable Trust, 

serving time reduces hourly wages for men by approximately 11 

percent, annual employment by 9 weeks, and annual earnings by 

40 percent.24 By age 48, the typical formerly incarcerated person will have earned $179,000 less than if he had never been incarcerated, not including income forfeited while incarcerated.25 Equally 


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26 Id. at 4, 12. 27Society for Human Resource Management, SHRM Survey Findings: Background Checking— 

The Use of Criminal Background Checks in Hiring Decisions (July 2012), available at http:// 

www.shrm.org/research/surveyfindings/articles/pages/criminalbackgroundcheck.aspx. 28Devah Pager, The Mark of a Criminal Record, 108 Am, J. of Sociology 937, 960 (Mar. 2003), 

available at http://scholar.harvard.edu/files/pager/files/pager_ajs.pdf. 29Devah Pager, Bruce Western, & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 Annals of the American Academy of Political and Social Science 195 (May 2009), available at http://scholar.harvard.edu/files/pager/files/annals_sequencingdisadvantage.pdf?m=1392390789. 30Michelle Natividad Rodriquez and Beth Avery, NELP, Ban the Box: U.S. Cities, Counties, 

and States Adopt Fair Hiring Policies (June 5, 2017), available at http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/. 31 Jennifer L. Doleac & Benjamin Hansen, Does ‘Ban the Box’ Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes when Criminal Histories Are Hidden 

(Jan. 1, 2017), available at https://ssrn.com/abstract=2812811; see also Amanda Y. Agan & Sonja 

B. Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment 

(June 14, 2016), available at https://ssrn.com/abstract=2795795. 

troubling, upon release from prison, incarceration depresses the 

total earnings of white males by 2 percent, of Latino males by 6 

percent, and African American males by 9 percent.26

Advancements in information technology and the Internet have 

given employers unprecedented access to criminal history record information. Surveys show that an estimated 87 percent of employers 

conduct criminal background checks on all job candidates. Therefore, a person’s criminal history can have a profound impact on 

their ability to find work, at times even when there is no logical 

connection between their criminal history and the work they apply 

for.27

Research examining the impact of a criminal record on the employment process found that in the initial stages of the hiring process, formerly incarcerated people were only one-half to one-third as 

likely as non-offenders to even be considered by employers.28 Additional research shows that a criminal record reduces the likelihood 

of a callback or job offer by nearly 50 percent for men, and that 

number increases to 60 percent for African American men, specifically.29

‘‘Banning the Box’’ 

Recognizing the impact employment has on reducing recidivism 

among persons with felony convictions, criminal justice reform advocates have begun encouraging states and private companies to 

consider adopting ‘‘ban the box’’ hiring policies, which remove or 

delay the criminal history inquiry on job applications.30 This relatively simple change has been shown to have had benefits for employers and felons alike. When an employer sees that an applicant 

has checked the ‘‘box’’ indicating their criminal record, they are 

more likely to dismiss the applicant. This not only hurts the applicant, it also hurts businesses by artificially reducing the pool of 

qualified candidates. 

Recent studies examining hiring trends before and after the introduction of ban the box policies have questioned their efficacy 

and cautioned policymakers to consider the unintended consequences such reforms might have on overall employment prospects among certain populations.31 The authors argue that, in the 

absence of upfront access to criminal background information, employers relied on other factors such as race to determine the likeliVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR033.XXX SR033

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32 Agan and Starr found no that black applicants without criminal records saw a substantial 

drop in callback rates after BTB policies were implemented, while white applicants with criminal records experienced significantly increased callback rates. Amanda Y. Agan & Sonja B. 

Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, 40 

(June 14, 2016), available at https://ssrn.com/abstract=2795795. 33 Id. at 24; see also Doleac, & Hansen, supra note 31, at 4. 34 Agan & Starr, supra note 32. 35Maurice Emsellem and Beth Avery, Racial Profiling in Hiring: A Critique of New ‘‘Ban the 

Box’’ Studies, National Employment Law Project 6 (Aug. 2016), available at http://www.nelp.org/ 

content/uploads/Policy-Brief-Racial-Profiling-in-Hiring-Critique-New-Ban-the-Box-Studies.pdf. 36 Id. at 6. 37 Supra note 28. 

hood of a candidate having a criminal history.32 As a result, entire 

demographic groups experienced disproportionately fewer callbacks 

and lowered hiring prospects—even those with no prior record.33

These studies do not expose any significant flaws in ban the box 

policies. On the contrary, the data gathered confirms that individuals with criminal records experience higher call back and employment rates after the introduction of fair chance hiring practices, 

which is precisely the intended outcome.34 The more concerning 

revelation for policymakers to consider is the continued role race 

and implicit bias play in the hiring process. Ban the box policies 

were never meant to solve the problems of racism or discrimination 

in the hiring process.35 Rather, they represent one part of a larger 

reform effort to destigmatize the mark of a criminal record, reduce 

employment barriers, and grant the formerly incarcerated the 

chance to be assessed by their merit and not their mistakes.36

The Fair Chance Act 

Barriers to employment increase the likelihood of recidivism, 

hurt the economy, and damage communities. It is therefore 

unsurprising that 33 states, the District of Columbia, and over 150 

cities and counties have adopted some variation of a policy to ‘‘ban 

the box’’ on job applications to ensure that people with felony 

records have a fair shot at putting their lives back on track. 

Consistent with these state efforts, the Fair Chance Act removes 

one of those barriers by leveling the playing field for individuals 

with a criminal history to find employment in the Federal Government. The bill moves the criminal history inquiry in most cases 

from the beginning of the hiring process, when differential treatment has been found most likely to occur,37 to later in the hiring 

process, when a conditional offer of employment has been made. 

According to the Office of Personnel Management (OPM), agencies generally do not currently ask about an applicant’s criminal 

history at the outset of the hiring process, so the legislation should 

not be a significant change in the process in most cases and its implementation would be relatively smooth. In addition, unlike some 

state and local ban-the-box policies that affect private employers 

broadly, the Fair Chance Act is more limited in scope since it only 

covers hiring in the Federal Government and hiring by prime Federal contractors. 

The Fair Chance Act applies to the entire Federal Government, 

including Congress and the Federal Judiciary. It also applies to 

some Federal civilian and defense contractors. The legislation is 

narrowly crafted, however, to only apply to prime contractors and 

only to those employees doing work for the Federal Government on 

a Federal contract. While a great deal of government work is performed by subcontractors, it would be exceedingly burdensome for 


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38These goals vary from agency to agency. The General Services Administration’s model plan 

calls for a goal of 30 percent of all subcontracting dollars. General Services Administration Acquisition Manual, Appendix 519A-Small Business Subcontracting Plan Outline (Model), available at https://www.acquisition.gov/sites/default/files/current/gsam/html/Part519AppA.html. 39Diane Arthur, Managing Human Resources in Small and Mid-Sized Companies 29 (2nd ed. 

2005). 40See generally, U.S. Department of Defense Education Activity, http://www.dodea.edu/. 41 Exec. Order No. 41 (Commonwealth of Virginia) (2015). 

large prime contractors to monitor the hiring practices of every single one of their subcontractors. Most agencies maintain a goal that 

one-fourth to one-third of all subcontracting dollars must flow to 

small businesses.38 These smaller entities are less likely to have 

sophisticated human resources offices and have more basic hiring 

practices.39

The legislation also provides commonsense exceptions for jobs 

where it would clearly undermine government efficiency, place at 

risk our national security, or risk harm to vulnerable populations 

if a person with a criminal history held the position. For agencies 

hiring for sensitive national security positions, the bill provides an 

exception that would allow the agency to inquire about a criminal 

history at any stage of the process. It also provides an exception 

for positions that would allow for unsupervised access to children. 

The Department of Defense (DOD), for example, operates schools 

and childcare centers on military bases around the world,40 and it 

is appropriate to inquire about the criminal history of applicants 

for positions at those schools earlier in the hiring process. 

The legislation also has a broad exception for positions where an 

employer is otherwise required by law to inquire about a criminal 

history prior to the conditional offer. This exception is modeled 

after the ‘‘ban the box’’ executive order instituted by the Commonwealth of Virginia.41 There are a variety of state, local, and even 

some Federal laws that require employers to collect information 

about criminal history, such as for teaching positions and positions 

that have access to personally identifiable information. 

Finally, rather than attempt to identify every type of position 

that should require an exception, the legislation provides broad authority for OPM, the General Services Administration, and DOD to 

establish additional exceptions for positions with the Federal Government, on civilian contracts, and on defense contracts. 

Even where an exception does not exist, the Federal agency or 

contractor is still able under this legislation to decide at the end 

of the process that the individual’s criminal history disqualifies 

them from a particular position. The purpose of the Fair Chance 

Act is not to remove access to criminal history information about 

an applicant for government employment; rather, the purpose is to 

move that information to the end of the process to give those with 

a criminal history a fair chance to compete for the Federal job. 

The legislation also does not prohibit employers from conducting 

outside research into job candidates, nor does it prohibit candidates 

from voluntarily disclosing their criminal history earlier before the 

conditional offer stage. 

The legislation is silent on the issue of background and credit 

checks for employment. Under existing law, any employers must 

request consent to conduct a background or credit check on an applicant for employment. Under the Fair Chance Act, an agency or 

contractor may still request that a job candidate sign a release to 


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allow the Federal employer to conduct these checks. The legislation 

does not change the application of existing law and guidance on the 

use of information resulting from a background or credit check. 

The legislation simply addresses the timing of a Federal agency 

or contractor’s inquiry into the criminal history of an applicant, 

and prohibits an employer from asking a candidate either in the 

application or interview whether they have a criminal history. The 

bill creates an administrative process to deal with Federal employees and contractors who ask an applicant about their criminal history earlier in the process. The legislation specifically states that 

this administrative process is the only avenue to deal with those 

who violate its provisions, and in no way creates a private right of 

action for any individual or entity to file any legal action based on 

a violation or alleged violation. For Federal employees, the legislation creates a process by which the employee is warned about the 

conduct and, after notice and appeal, may be fined if the conduct 

is repetitive. For civilian and defense contractors, the bill creates 

a process whereby the contractor is warned not to repeat the violation. It creates a permissive process for the contract manager to 

work with the contractor to achieve compliance. 

This approach balances the need for an enforcement mechanism 

with the overall goal of encouraging federal agencies and government contractors to consider hiring individuals with a criminal history when they are otherwise qualified for the position. 

III. LEGISLATIVE HISTORY

S. 387, the Fair Chance Act, was introduced on February 7, 2019, 

by Senators Cory Booker, Ron Johnson, Tammy Baldwin, Joni 

Ernst, Sherrod Brown, and Rob Portman. Senators Tammy 

Duckworth and Gary Peters later joined as cosponsors. The bill was 

referred to the Committee on Homeland Security and Governmental Affairs. 

The Committee considered S. 387 at a business meeting on February 13, 2019. The bill passed by voice vote en bloc, with Senators 

Johnson, Portman, Paul, Lankford, Romney, Scott, Enzi, Hawley, 

Peters, Carper, Hassan, Harris, Sinema, and Rosen were present. 

Senators Scott and Hawley were recorded ‘‘No’’ for the record only. 

Consistent with Committee Rule 11, the Committee reports the bill 

with technical changes by mutual agreement of the Chairman and 

Ranking Member. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title 

This section establishes the short title of the bill as the ‘‘Fair 

Chance to Compete for Jobs Act of 2019’’ or the ‘‘Fair Chance Act’’. 

Section 2. Prohibition on criminal history inquiries prior to conditional offer for Federal employment 

This section prohibits inquiries into the criminal history of an applicant for Federal employment, including the Legislative Branch, 

Executive Branch, and the Federal Judiciary until that applicant 

has received a conditional offer of employment. It establishes a 

process for those who are asked about their criminal history to report the violation, as well as adverse actions against Federal emVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR033.XXX SR033

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ployees who violate the prohibition. It provides for exceptions to the 

prohibition, such as applications for sensitive positions, positions 

that are prohibited under law from being filled by an individual 

with a criminal history, positions with access to minors, and other 

such positions as regulated by OPM. It also requires that such exceptions be consistent with existing civil rights laws. 

Section 3. Prohibition on criminal history inquiries by contractors 

prior to conditional offer 

This section prohibits inquiries into the criminal history of an applicant for employment for work under a Federal contract until 

that applicant has received a conditional offer of employment. It establishes a process for those who are asked about their criminal 

history to report the violation, as well as adverse actions against 

contractors that violate the prohibition. 

It provides for exceptions to the prohibition, such as for sensitive 

positions, positions that are prohibited under law from being filled 

by an individual with a criminal history, positions with access to 

minors, and other such positions as regulated by the General Services Administration and DOD. It also requires that such exceptions 

be consistent with existing civil rights laws. 

Section 4. Report on employment of individuals formerly incarcerated in Federal prisons 

This section requires a joint study and report by the Bureau of 

the Census and Bureau of Justice Statistics regarding the employment of individuals following their release from Federal prison. 

This report must be issued no later than two years after the date 

of enactment of the legislation, and every five years thereafter, and 

should exclude personally identifiable information. These reports 

are to be submitted to the Committee on Homeland Security and 

Governmental Affairs of the Senate, the Committee on Health, 

Education, Labor, and Pensions of the Senate, the Committee on 

Oversight and Government Reform of the House of Representatives, and the Committee on Education and Labor of the House of 

Representatives. 

V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill and determined that the bill will 

have no regulatory impact within the meaning of the rules. The 

Committee agrees with the Congressional Budget Office’s statement that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA) and would impose no costs on state, local, or tribal governments. 


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1See Recruitment, Selection, and Placement (General) and Suitability, 81 Fed. Reg. 86555 

(January 3, 2017), https://go.usa.gov/xEf84. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 8, 2019. 

Hon. RON JOHNSON, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 387, the Fair Chance to 

Compete for Jobs Act of 2019. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is David Hughes. 

Sincerely, 

KEITH HALL, 

Director. 

Enclosure. 

S. 387 would amend federal law to prevent federal employers and 

contractors from inquiring about a job applicant’s criminal history 

until after the applicant has received a conditional job offer. The 

bill would direct federal hiring agencies within the executive, legislative, and judicial branches to issue and implement regulations, 

policies, and procedures to ensure compliance. S. 387 also would direct the Bureau of Justice Statistics to report to the Congress periodically on the employment statistics of former federal prisoners. 

There is no general prohibition against hiring employees with a 

criminal history; however, regulations do prevent their employment 

in certain positions. Most of the bill’s major provisions would codify 

an existing regulation that delays inquiries into the criminal history of potential employees until later in the hiring process.1 Therefore, CBO estimates that implementing S. 387 would cost less than 

$500,000 annually; any spending would be subject to the availability of appropriated funds. 

Enacting S. 387 could affect direct spending by some agencies 

(such as the Tennessee Valley Authority) because they are authorVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR033.XXX SR033

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ized to use receipts from fees, the sale of goods, and other collections to cover their operating costs. Because most of those agencies 

can adjust the amounts they collect as operating costs change, CBO 

estimates that any net changes in direct spending by those agencies would be negligible. 

S. 387 mandates that employees who violate the bill’s provisions 

repeatedly would be required to pay civil penalties. Therefore, S. 

387 could increase the collection of civil fines from federal employees who inquire about an applicant’s criminal history prematurely. 

Because civil penalties are recorded in the federal budget as revenues, enacting the legislation could increase revenues. CBO estimates that such increases would not be significant in any year. 

The CBO staff contact for this estimate is David Hughes. This 

estimate was reviewed by H. Samuel Papenfuss, Assistant Director 

for Budget Analysis. 

VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows: (existing law proposed to be omitted 

is enclosed in brackets, new matter is printed in italic, and existing 

law in which no change is proposed is shown in roman): 

CONGRESSIONAL ACCOUNTABILITY ACT OF 

1995 

* * * * * * * 

SEC. 1. SHORT TITLE AND TABLE OF CONTENTS 

(a) * * * 

(b) * * * 

TITLE II—EXTENSION OF RIGHTS AND PROTECTIONS 

Sec. 201. * * * 

* * * * * * * 

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

ø207¿ 208. Prohibition of intimidation or reprisal. 

* * * * * * * 

SEC. 102. APPLICATION OF LAWS 

(a) * * * 

(1) * * * 

* * * * * * * 

(12) Section 9202 of title 5, United States Code. 

* * * * * * * 

SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMINAL HISTORY INQUIRIES 

(a) DEFINITIONS.—In this section, the terms ‘‘agency’’, ‘‘criminal 

history and record information’’, and ‘‘suspension’’ have the meanings given the terms in section 9201 of title 5, United States Code, 

except as otherwise modified by this section. 

(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIRIES.— 


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12 

(1) IN GENERAL.— 

(A) IN GENERAL.—Except as provided in subparagraph 

(B), an employee of an employing office may not request 

that an applicant for employment as a covered employee 

disclose criminal history record information if the request 

would be prohibited under section 9202 of title 5, United 

States Code, if made by an employee of an agency. 

(B) CONDITIONAL OFFER.—For purposes of applying that 

section 9202 under subparagraph (A), a reference in that 

section 9202 to a conditional offer shall be considered to be 

an offer of employment as a covered employee that is conditioned upon the results of a criminal history inquiry. 

(2) RULES OF CONSTRUCTION.—The provisions of section 9206 

of title 5, United States Code, shall apply to employing offices, 

consistent with regulations issued under subsection (d). 

(c) REMEDY.— 

(1) IN GENERAL.—The remedy for a violation of subsection 

(b)(1) shall be such remedy as would be appropriate if awarded 

under section 9204 of title 5, United States Code, if the violation had been committed by an employee of an agency, consistent with regulations issued under subsection (d), except that 

the reference in that section to a suspension shall be considered 

to be a suspension with the level of compensation provided for 

a covered employee who is taking unpaid leave under section 

202. 

(2) PROCESS FOR OBTAINING RELIEF.—An applicant for employment as a covered employee who alleges a violation of subsection (b)(1) may rely on the provisions of title IV (other than 

section 407 or 408, or a provision of this title that permits a 

person to obtain a civil action or judicial review), consistent 

with regulations issued under subsection (d). 

(d) REGULATIONS TO IMPLEMENT SECTION.— 

(1) IN GENERAL.—Not later than 18 months after the date of 

enactment of the Fair Chance to Compete for Jobs Act of 2019, 

the Board shall, pursuant to section 304, issue regulations to 

implement this section. 

(2) PARALLEL WITH AGENCY REGULATIONS.—The regulations 

issued under paragraph (1) shall be the same as substantive 

regulations issued by the director of the Office of Personnel 

management under section 2(b)(1) of the Fair Chance to Compete for Jobs Act of 2019 to implement the statutory provisions 

referred to in subsections (a) through (c) except to the extent 

that the Board may determine, for good cause shown and stated 

together with the regulation, that a modification of such regulations would be more effective for the implementation of the 

rights and protections under this section. 

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

through (c) shall take effect on the date on which section 9202 of 

title 5, United States Code, applies with respect to agencies. 

øSEC. 207¿ SEC. 208 PROHIBITION OF INTIMIDATION OR REPRISAL 

* * * * * * * 


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UNITED STATES CODE 

* * * * * * * 

TITLE 5—GOVERNMENT ORGANIZATION AND 

EMPLOYEES 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

Subpart H—Access to Criminal History Record Information 

* * * * * * * 

CHAPTER 92—PROHIBITION ON CRIMINAL HISTORY 

INQUIRIES PRIOR TO CONDITIONAL OFFER 

Sec. 

9201. Definitions 

9202. Limitations on requests for criminal history information. 

9203. Agency policies; whistleblower complaint procedures. 

9204. Adverse action. 

9205. Procedures. 

9206. Rules of construction. 

SEC. 9201. DEFINITIONS 

In this chapter— 

(1) the term ‘‘agency’’ means ‘‘Executive agency’’ as such term 

is defined in section 105 and includes— 

(A) the United States Postal Service and the Postal Regulatory Commission; and 

(B) the Executive Office of the President; 

(2) the term ‘‘appointing authority’’ means an employee in the 

executive branch of the Government of the United States that 

has authority to make appointments to positions in the civil 

service; 

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

in a position in the civil service that is conditioned upon the results of a criminal history inquiry; 

(4) the term ‘‘criminal history record information’’— 

(A) except as provided in subparagraph (B), has the 

meaning given the term in section 9101(a); 

(B) includes any information described in the first section 

of section 9101(a)(2) that has been sealed or expunged pursuant to law; and 

(C) includes information collected by a criminal justice 

agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record information (including such information that has been sealed or 

expunged pursuant to law); and 

(5) the term ‘‘suspension’’ has the meaning given the term in 

section 7501. 


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SEC. 9202. LIMITATIONS ON REQUESTS FOR CRIMINAL HISTORY 

RECORD INFORMATION 

(a) INQUIRIES PRIOR TO CONDITIONAL OFFER.—Except as provided 

in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declaration for 

Federal Employment (Office of Personnel Management Optional 

Form 306), or any similar successor form), including through the 

USAJOBS internet web site or any other electronic means, that an 

applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant 

before the appointing authority extends a conditional offer to the applicant. 

(b) OTHERWISE REQUIRED BY LAW.—The prohibition under subsection (a) shall not apply with respect to an applicant for a position 

in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is 

otherwise required by law. 

(c) EXCEPTION FOR CERTAIN POSITIONS.— 

(1) IN GENERAL.—The prohibition under subsection (a) shall 

not apply with respect to an applicant for an appointment to a 

position— 

(A) that requires a determination of eligibility described 

in subparagraph (A), (B), or (C) of section 9101(b)(1); 

(B) as a Federal law enforcement officer (as defined in 

section 115(c) of title 18); or 

(C) identified by the Director of the Office of Personnel 

Management in the regulations issued under paragraph 

(2). 

(2) REGULATIONS.— 

(A) ISSUANCE.—The Director of the Office of Personnel 

Management shall issue regulations identifying additional 

positions with respect to which the prohibition under subsection (a) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions. 

(B) COMPLIANCE WITH CIVIL RIGHTS LAWS.—The regulations issued under subparagraph (A) 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. 

SEC. 9203. AGENCY POLICIES; COMPLAINT PROCEDURES 

The Director of the Office of Personnel Management shall— 

(1) develop, implement, and publish a policy to assist employees of agencies in complying with section 9202 and the regulations issued pursuant to such section; an 

(2) establish and publish procedures under which an applicant for an appointment to a position in the civil service may 

submit a complaint, or any other information, relating to compliance by an employee of an agency with section 9202. 


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15 

SEC. 9204. ADVERSE ACTION 

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

Management determines, after notice and an opportunity for a hearing on the record, that an employee of an agency has violated section 9202, the Director shall— 

(1) issue to the employee a written warning that includes a 

description of the violation and the additional penalties that 

may apply for subsequent violations; and 

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

record file. 

(b) SUBSEQUENT VIOLATIONS.—If the Director of the Office of Personnel Management determines, after notice and opportunity for a 

hearing on the record, that an employee was subject to subsection 

(a) has committed a subsequent violation of section 9202, the Director may take the following action: 

(1) For a second violation, suspension of the employee for a 

period of not more than 7 days. 

(2) For a third violation, suspension of the employee for a period of more than 7 days. 

(3) For a fourth violation— 

(A) suspension of the employee for a period of more than 

7 days; and 

(B) a civil penalty against the employee in an amount 

that is not more than $250. 

(4) For a fifth violation— 

(A) suspension of the employee for a period of more than 

7 days; and 

(B) a civil penalty against the employee in an amount 

that is not more than $500. 

(5) For any subsequent violation— 

(A) suspension of the employee for a period of more than 

seven days; and 

(B) a civil penalty against the employee in an amount 

that is not more than $1,000. 

SEC. 9205. PROCEDURES 

(a) APPEALS.—The Director of the Office of Personnel Management shall by rule establish procedures providing for an appeal 

from any adverse action taken under section 9204 by not later than 

30 days after the date of the action. 

(b) APPLICABILITY OF OTHER LAWS.—An adverse action taken 

under section 9204 (including a determination in an appeal from 

such an action under subsection (a) of this section) shall not be subject to— 

(1) the procedures under chapter 75; or 

(2) except as provided in subsection (a) of this section, appeal 

or judicial review. 

SEC. 9206. RULES OF CONSTRUCTION 

Nothing in this chapter may be construed to— 

(1) authorize any officer or employee of an agency to request 

the disclosure of information described under subparagraphs 

(B) and (C) of section 9201(4); or 

(2) create a private right of action for any person. 

* * * * * * * 


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TITLE 10—ARMED FORCES 

* * * * * * * 

Subtitle A—General Military Law 

* * * * * * * 

PART IV—SERVICE, SUPPLY, AND PROCUREMENT 

* * * * * * * 

Chapter 137—Procurement Generally 

* * * * * * * 

Table of sections 

Sec. 

2101. * * * 

* * * * * * * 

2389. Prohibition on criminal history inquiries by contractors prior to conditional 

offer. 

* * * * * * * 

SEC. 2339. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY CONTRACTORS PRIOR TO CONDITIONAL OFFER 

(a) LIMITATION ON CRIMINAL HISTORY INQUIRIES.— 

(1) IN 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) 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 Secretary of Defense 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 2015, the Secretary of Defense, in consultaVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6603 E:\HR\OC\SR033.XXX SR033

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tion with the Administer 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 

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 Federal contractor may submit to the Administrator a 

complaint, or any other information, relating to compliance by the 

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

(c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.— 

(1) FIRST VIOLATION.—If the Secretary of Defense determines 

that a contractor has violated subsection (a)(1)(B), the Secretary 

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 to the contractor that includes a description of the violation and he additional remedies that may apply for subsequent violations. 

(2) SUBSEQUENT VIOLATIONS.—If the Secretary of Defense determines that a contractor that was subject to paragraph (1) 

has committed a subsequent violation of subsection (a)(1)(B), 

the Secretary 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, 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. 

(C) 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. 


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18 

(2) CRIMINAL HISTORY RECORD INFORMATION.—The term 

‘criminal history record information’ has the meaning given 

that term in section 9201 of title 5. 

* * * * * * * 

TITLE 26—INTERNAL REVENUE CODE 

* * * * * * * 

Subtitle A—Determination of Tax Liability 

* * * * * * * 

CHAPTER 1—NORMAL TAXES AND SURTAXES 

* * * * * * * 

Subchapter B—Computation of Taxable Income 

* * * * * * * 

PART I—DEFINITION OF GROSS INCOME, ADJUSTED 

GROSS INCOME, TAXABLE INCOME, ETC. 

* * * * * * * 

SEC. 62. ADJUSTED GROSS INCOME DEFINED 

(a) * * * 

* * * * * * * 

(e) UNLAWFUL DISCRIMINATION DEFINED.—For the purposes of 

subsection (a)(20), the term ‘‘unlawful discrimination’’ means an 

Act that is unlawful under any of the following: 

(1) * * * 

(2) Section 201, 202, 203, 204, 205, 206, øor 207¿ 207, or 208 

of the Congressional Accountability Act of 1995 (2 U.S.C. 1311, 

1312, 1313, 1314, 1315, 1316, or 1317). 

* * * * * * * 

TITLE 28—JUDICIARY AND JUDICIAL 

PROCEDURE 

* * * * * * * 

PART III—COURT OFFICERS AND EMPLOYEES 

* * * * * * * 

CHAPTER 41—ADMINISTRATIVE OFFICE OF UNITED 

STATES COURTS 

* * * * * * * 

SEC. 604. DUTIES OF DIRECTOR GENERALLY 

(a) * * * 

* * * * * * * 


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19 

(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIRIES.— 

(1) DEFINITIONS.—In this subsection— 

(A) the terms ‘‘agency’’ and ‘‘criminal history record information’’ have the meanings given those terms in section 

9201 of title 5; 

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

judicial branch of the United States Government, other 

than— 

(i) any judge or justice who is entitled to hold office 

during good behavior; 

(ii) a United States magistrate judge; or 

(iii) a bankruptcy judge; and 

(C) the term ‘‘employing office’’ means any office or entity 

of the judicial branch of the United States Government that 

employs covered employees. 

(2) RESTRICTION.—A covered employee may not request that 

an applicant for employment as a covered employee disclose 

criminal history record information if the request would be prohibited under section 9202 of title 5 if made by an employee of 

an agency. 

(3) EMPLOYING OFFICE POLICIES; COMPLAINT PROCEDURE.— 

The provisions of sections 9203 and 9206 of title 5 shall apply 

to employing offices and to applicants for employment as covered employees, consistent with regulations issued by the Director to implement this subsection. 

(4) ADVERSE ACTION.— 

(A) ADVERSE ACTION.—The Director may take such adverse action with respect to a covered employee who violates 

paragraph (2) as would be appropriate under section 9204 

of title 5 if the violation had been committed by an employee of an agency. 

(B) APPEALS.—The Director shall by rule establish procedures providing for an appeal from any adverse action 

taken under subparagraph (A) by not later than 30 days 

after the date of the action. 

(C) APPLICABILITY OF OTHER LAWS.—Except as provided 

in subparagraph (B), an adverse action taken under subparagraph (A) (including a determination in an appeal 

from such an action under subparagraph (B)) shall not be 

subject to appeal or judicial review. 

(5) REGULATIONS TO BE ISSUED.— 

(A) IN GENERAL.—Not later than 18 months after the 

date of enactment of the Fair Chance to Compete for Jobs 

Act of 2015, the Director shall issue regulations to implement this subsection. 

(B) PARALLEL WITH AGENCY REGULATIONS.—The regulations issued under subparagraph (A) shall be the same as 

substantive regulations promulgated by the Director of the 

Office of Personnel Management under section 2(b)(1) of the 

Fair Chance to Compete for Jobs Act of 2015 except to the 

extent that the Director of the Administrative Office of the 

United States Courts may determine, for good cause shown 

and stated together with the regulation, that a modification 

of such regulations would be more effective for the impleVerDate Sep 11 2014 01:19 Apr 16, 2019 Jkt 089010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6603 E:\HR\OC\SR033.XXX SR033

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mentation of the rights and protections under this subsection. 

(6) EFFECTIVE DATE.—Paragraphs (1) through (4) shall take 

effect on the date on which section 9202 of title 5 applies with 

respect to agencies. 

* * * * * * * 

TITLE 41—PUBLIC CONTRACTS 

* * * * * * * 

Subtitle I—Federal Procurement Policy 

* * * * * * * 

CHAPTER 47—MISCELLANEOUS 

* * * * * * * 

Table of sections 

Sec. 

4701. * * * 

* * * * * * * 

4714. Prohibition on criminal history inquiries by contractors prior to conditional 

offer. 

* * * * * * * 

SEC. 4714. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY CONTRACTORS PRIOR TO CONDITIONAL OFFER 

(a) LIMITATION ON CRIMINAL HISTORY INQUIRIES.— 

(1) IN 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 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 


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21 

(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 2015, 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) COMPLAINT PROCEDURES.—The Administrator of the 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). 

(c) ACTION FOR VIOLATIONS OF PROHIBITION ON CRIMINAL HISTORY INQUIRIES.— 

(1) FIRST VIOLATION.—If the head of an executive agency determines 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 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 determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection 

(a)(1)(B), such head 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, 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; 


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22 

(C) 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. 

Æ 


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