II 

116TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 7, 2019 

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

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

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

A BILL 

To prohibit Federal agencies and Federal contractors from 

requesting that an applicant for employment disclose 

criminal history record information before the applicant 

has received a conditional offer, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Chance to Com5 pete for Jobs Act of 2019’’ or the ‘‘Fair Chance Act’’. 


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1 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

2 PRIOR TO CONDITIONAL OFFER FOR FED3 ERAL EMPLOYMENT. 

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

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

6 following: 

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

9 CONDITIONAL OFFER 

‘‘Sec. 

‘‘9201. Definitions. 

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

‘‘9203. Agency policies; whistleblower complaint procedures. 

‘‘9204. Adverse action. 

‘‘9205. Procedures. 

‘‘9206. Rules of construction. 

10 ‘‘§ 9201. Definitions 

11 ‘‘In this chapter— 

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

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

16 the Postal Regulatory Commission; and 

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

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

19 employee in the executive branch of the Government 

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


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

2 of employment in a position in the civil service that 

3 is conditioned upon the results of a criminal history 

4 inquiry; 

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

7 ‘‘(A) except as provided in subparagraphs 

8 (B) and (C), has the meaning given the term in 

9 section 9101(a); 

10 ‘‘(B) includes any information described in 

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

12 been sealed or expunged pursuant to law; and 

13 ‘‘(C) includes information collected by a 

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

18 or expunged pursuant to law); and 

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

20 given the term in section 7501. 

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

22 record information 

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

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

25 of an agency may not request, in oral or written form (inVerDate Sep 11 2014 03:18 Feb 16, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S387.IS S387

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1 cluding through the Declaration for Federal Employment 

2 (Office of Personnel Management Optional Form 306) or 

3 any similar successor form, the USAJOBS Internet Web 

4 site, or any other electronic means) that an applicant for 

5 an appointment to a position in the civil service disclose 

6 criminal history record information regarding the appli7 cant before the appointing authority extends a conditional 

8 offer to the applicant. 

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

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

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

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

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

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

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


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

4 ‘‘(2) REGULATIONS.— 

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

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

10 positions that involve interaction with minors, 

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

13 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS

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

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

17 supersede, restrict, or limit the application 

18 of title VII of the Civil Rights Act of 1964 

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

20 Federal civil rights laws; and 

21 ‘‘(ii) ensure that all hiring activities 

22 conducted pursuant to the regulations are 

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


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1 ‘‘§ 9203. Agency policies; complaint procedures 

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

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

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

7 such section; and 

8 ‘‘(2) establish and publish procedures under 

9 which an applicant for an appointment to a position 

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

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

13 ‘‘§ 9204. Adverse action 

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

15 of Personnel Management determines, after notice and an 

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

17 of an agency has violated section 9202, the Director 

18 shall— 

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

20 that includes a description of the violation and the 

21 additional penalties that may apply for subsequent 

22 violations; and 

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

24 personnel record file. 

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

26 the Office of Personnel Management determines, after noVerDate Sep 11 2014 03:18 Feb 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S387.IS S387

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

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

4 may take the following action: 

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

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

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

8 employee for a period of more than 7 days. 

9 ‘‘(3) For a fourth violation— 

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

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

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

14 ‘‘(4) For a fifth violation— 

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

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

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

19 ‘‘(5) For any subsequent violation— 

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

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

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


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1 ‘‘§ 9205. Procedures 

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

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

6 the action. 

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

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

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

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

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

13 section, appeal or judicial review. 

14 ‘‘§ 9206. Rules of construction 

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

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

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

19 9201(4); or 

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

21 person.’’. 

22 (b) REGULATIONS; EFFECTIVE DATE.— 

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

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

25 the Office of Personnel Management shall issue such 

26 regulations as are necessary to carry out chapter 92 


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

2 Act). 

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

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

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

6 of enactment of this Act. 

7 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

10 chapter 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

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

11 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

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

14 amended— 

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

16 by adding at the end the following: 

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

18 Code.’’; 

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

20 1317) as section 208; and 

21 (C) by inserting after section 206 (2 

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


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

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

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

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

7 this section. 

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

10 ‘‘(1) IN GENERAL.— 

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

12 subparagraph (B), an employee of an employing 

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

16 would be prohibited under section 9202 of title 

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

18 of an agency. 

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

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

22 a conditional offer shall be considered to be an 

23 offer of employment as a covered employee that 

24 is conditioned upon the results of a criminal 

25 history inquiry. 


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

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

5 ‘‘(c) REMEDY.— 

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

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

8 be appropriate if awarded under section 9204 of title 

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

10 committed by an employee of an agency, consistent 

11 with regulations issued under subsection (d), except 

12 that the reference in that section to a suspension 

13 shall be considered to be a suspension with the level 

14 of compensation provided for a covered employee 

15 who is taking unpaid leave under section 202. 

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

17 applicant for employment as a covered employee who 

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

19 the provisions of title IV (other than section 407 or 

20 408, or a provision of this title that permits a per21 son to obtain a civil action or judicial review), con22 sistent with regulations issued under subsection (d). 

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

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

25 after the date of enactment of the Fair Chance to 


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1 Compete for Jobs Act of 2019, the Board shall, pur2 suant to section 304, issue regulations to implement 

3 this section. 

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

5 The regulations issued under paragraph (1) shall be 

6 the same as substantive regulations issued by the 

7 Director of the Office of Personnel Management 

8 under section 2(b)(1) of the Fair Chance to Com9 pete for Jobs Act of 2019 to implement the statu10 tory provisions referred to in subsections (a) through 

11 (c) except to the extent that the Board may deter12 mine, for good cause shown and stated together with 

13 the regulation, that a modification of such regula14 tions would be more effective for the implementation 

15 of the rights and protections under this section. 

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

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

18 on which section 9202 of title 5, United States Code, ap19 plies with respect to agencies.’’. 

20 (2) CLERICAL AMENDMENTS.— 

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

22 the Congressional Accountability Act of 1995 

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


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1 (i) by redesignating the item relating 

2 to section 207 as the item relating to sec3 tion 208; and 

4 (ii) by inserting after the item relating 

5 to section 206 the following new item: 

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

6 (B) Section 62(e)(2) of the Internal Rev7 enue Code of 1986 is amended by striking ‘‘or 

8 207’’ and inserting ‘‘207, or 208’’. 

9 (e) APPLICATION TO JUDICIAL BRANCH.— 

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

11 United States Code, is amended by adding at the 

12 end the following: 

13 ‘‘(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIR14 IES.— 

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

16 ‘‘(A) the terms ‘agency’ and ‘criminal his17 tory record information’ have the meanings 

18 given those terms in section 9201 of title 5; 

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

20 employee of the judicial branch of the United 

21 States Government, other than— 

22 ‘‘(i) any judge or justice who is enti23 tled to hold office during good behavior; 

24 ‘‘(ii) a United States magistrate 

25 judge; or 


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1 ‘‘(iii) a bankruptcy judge; and 

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

3 office or entity of the judicial branch of the 

4 United States Government that employs covered 

5 employees. 

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

7 not request that an applicant for employment as a 

8 covered employee disclose criminal history record in9 formation if the request would be prohibited under 

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

11 agency. 

12 ‘‘(3) EMPLOYING OFFICE POLICIES; COMPLAINT

13 PROCEDURE.—The provisions of sections 9203 and 

14 9206 of title 5 shall apply to employing offices and 

15 to applicants for employment as covered employees, 

16 consistent with regulations issued by the Director to 

17 implement this subsection. 

18 ‘‘(4) ADVERSE ACTION.— 

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

20 may take such adverse action with respect to a 

21 covered employee who violates paragraph (2) as 

22 would be appropriate under section 9204 of 

23 title 5 if the violation had been committed by 

24 an employee of an agency. 


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

2 rule establish procedures providing for an ap3 peal from any adverse action taken under sub4 paragraph (A) by not later than 30 days after 

5 the date of the action. 

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

7 Except as provided in subparagraph (B), an ad8 verse action taken under subparagraph (A) (in9 cluding a determination in an appeal from such 

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

11 subject to appeal or judicial review. 

12 ‘‘(5) REGULATIONS TO BE ISSUED.— 

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

14 months after the date of enactment of the Fair 

15 Chance to Compete for Jobs Act of 2019, the 

16 Director shall issue regulations to implement 

17 this subsection. 

18 ‘‘(B) PARALLEL WITH AGENCY REGULA19 TIONS.—The regulations issued under subpara20 graph (A) shall be the same as substantive reg21 ulations promulgated by the Director of the Of22 fice of Personnel Management under section 

23 2(b)(1) of the Fair Chance to Compete for Jobs 

24 Act of 2019 except to the extent that the Direc25 tor of the Administrative Office of the United 


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1 States Courts may determine, for good cause 

2 shown and stated together with the regulation, 

3 that a modification of such regulations would be 

4 more effective for the implementation of the 

5 rights and protections under this subsection. 

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

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

8 section 9202 of title 5 applies with respect to agen9 cies.’’. 

10 SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY 

11 CONTRACTORS PRIOR TO CONDITIONAL 

12 OFFER. 

13 (a) CIVILIAN AGENCY CONTRACTS.— 

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

15 United States Code, is amended by adding at the 

16 end the following new section: 

17 ‘‘§ 4714. Prohibition on criminal history inquiries by 

18 contractors prior to conditional offer 

19 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIR20 IES.— 

21 ‘‘(1) IN GENERAL.—Except as provided in para22 graphs (2) and (3), an executive agency— 

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

24 sole proprietor who submits a bid for a contract 

25 to disclose criminal history record information 


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1 regarding that individual or sole proprietor be2 fore determining the apparent awardee; and 

3 ‘‘(B) shall require, as a condition of receiv4 ing a Federal contract and receiving payments 

5 under such contract that the contractor may 

6 not verbally, or through written form, request 

7 the disclosure of criminal history record infor8 mation regarding an applicant for a position re9 lated to work under such contract before the 

10 contractor extends a conditional offer to the ap11 plicant. 

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

13 prohibition under paragraph (1) does not apply with 

14 respect to a contract if consideration of criminal his15 tory record information prior to a conditional offer 

16 with respect to the position is otherwise required by 

17 law. 

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

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

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

21 ‘‘(i) a contract that requires an indi22 vidual hired under the contract to access 

23 classified information or to have sensitive 

24 law enforcement or national security du25 ties; or 


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1 ‘‘(ii) a position that the Administrator 

2 of General Services identifies under the 

3 regulations issued under subparagraph 

4 (B). 

5 ‘‘(B) REGULATIONS.— 

6 ‘‘(i) ISSUANCE.—Not later than 16 

7 months after the date of enactment of the 

8 Fair Chance to Compete for Jobs Act of 

9 2019, the Administrator of General Serv10 ices, in consultation with the Secretary of 

11 Defense, shall issue regulations identifying 

12 additional positions with respect to which 

13 the prohibition under paragraph (1) shall 

14 not apply, giving due consideration to posi15 tions that involve interaction with minors, 

16 access to sensitive information, or man17 aging financial transactions. 

18 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

19 LAWS.—The regulations issued under 

20 clause (i) shall— 

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

22 way supersede, restrict, or limit the 

23 application of title VII of the Civil 

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


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1 et seq.) or other relevant Federal civil 

2 rights laws; and 

3 ‘‘(II) ensure that all hiring activi4 ties conducted pursuant to the regula5 tions are conducted in a manner con6 sistent with relevant Federal civil 

7 rights laws. 

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

9 of General Services shall establish and publish procedures 

10 under which an applicant for a position with a Federal 

11 contractor may submit to the Administrator a complaint, 

12 or any other information, relating to compliance by the 

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

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

15 CRIMINAL HISTORY INQUIRIES.— 

16 ‘‘(1) FIRST VIOLATION.—If the head of an exec17 utive agency determines that a contractor has vio18 lated subsection (a)(1)(B), such head shall— 

19 ‘‘(A) notify the contractor; 

20 ‘‘(B) provide 30 days after such notifica21 tion for the contractor to appeal the determina22 tion; and 

23 ‘‘(C) issue a written warning to the con24 tractor that includes a description of the violaVerDate Sep 11 2014 03:18 Feb 16, 2019 Jkt 089200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S387.IS S387

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1 tion and the additional remedies that may apply 

2 for subsequent violations. 

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

4 an executive agency determines that a contractor 

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

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

7 head shall notify the contractor, shall provide 30 

8 days after such notification for the contractor to ap9 peal the determination, and, in consultation with the 

10 relevant Federal agencies, may take actions, depend11 ing on the severity of the infraction and the contrac12 tor’s history of violations, including— 

13 ‘‘(A) providing written guidance to the 

14 contractor that the contractor’s eligibility for 

15 contracts requires compliance with this section; 

16 ‘‘(B) requiring that the contractor respond 

17 within 30 days affirming that the contractor is 

18 taking steps to comply with this section; and 

19 ‘‘(C) suspending payment under the con20 tract for which the applicant was being consid21 ered until the contractor demonstrates compli22 ance with this section. 

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

24 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi25 tional offer’ means an offer of employment for a poVerDate Sep 11 2014 03:18 Feb 16, 2019 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S387.IS S387

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1 sition related to work under a contract that is condi2 tioned upon the results of a criminal history inquiry. 

3 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA4 TION.—The term ‘criminal history record informa5 tion’ has the meaning given that term in section 

6 9201 of title 5.’’. 

7 (2) CLERICAL AMENDMENT.—The table of sec8 tions for chapter 47 of title 41, United States Code, 

9 is amended by adding at the end the following new 

10 item: 

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

11 (3) EFFECTIVE DATE.—Section 4714 of title 

12 41, United States Code, as added by paragraph (1), 

13 shall apply with respect to contracts awarded pursu14 ant to solicitations issued after the effective date de15 scribed in section 2(b)(2) of this Act. 

16 (b) DEFENSE CONTRACTS.— 

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

18 United States Code, is amended by inserting after 

19 section 2338 the following new section: 

20 ‘‘§ 2339. Prohibition on criminal history inquiries by 

21 contractors prior to conditional offer 

22 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIR23 IES.— 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graphs (2) and (3), the head of an agency— 

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

4 sole proprietor who submits a bid for a contract 

5 to disclose criminal history record information 

6 regarding that individual or sole proprietor be7 fore determining the apparent awardee; and 

8 ‘‘(B) shall require as a condition of receiv9 ing a Federal contract and receiving payments 

10 under such contract that the contractor may 

11 not verbally or through written form request 

12 the disclosure of criminal history record infor13 mation regarding an applicant for a position re14 lated to work under such contract before such 

15 contractor extends a conditional offer to the ap16 plicant. 

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

18 prohibition under paragraph (1) does not apply with 

19 respect to a contract if consideration of criminal his20 tory record information prior to a conditional offer 

21 with respect to the position is otherwise required by 

22 law. 

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

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

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


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1 ‘‘(i) a contract that requires an indi2 vidual hired under the contract to access 

3 classified information or to have sensitive 

4 law enforcement or national security du5 ties; or 

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

7 Defense identifies under the regulations 

8 issued under subparagraph (B). 

9 ‘‘(B) REGULATIONS.— 

10 ‘‘(i) ISSUANCE.—Not later than 16 

11 months after the date of enactment of the 

12 Fair Chance to Compete for Jobs Act of 

13 2019, the Secretary of Defense, in con14 sultation with the Administrator of Gen15 eral Services, shall issue regulations identi16 fying additional positions with respect to 

17 which the prohibition under paragraph (1) 

18 shall not apply, giving due consideration to 

19 positions that involve interaction with mi20 nors, access to sensitive information, or 

21 managing financial transactions. 

22 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

23 LAWS.—The regulations issued under 

24 clause (i) shall— 


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

2 way supersede, restrict, or limit the 

3 application of title VII of the Civil 

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

5 et seq.) or other relevant Federal civil 

6 rights laws; and 

7 ‘‘(II) ensure that all hiring activi8 ties conducted pursuant to the regula9 tions are conducted in a manner con10 sistent with relevant Federal civil 

11 rights laws. 

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

13 Defense shall establish and publish procedures under 

14 which an applicant for a position with a Department of 

15 Defense contractor may submit a complaint, or any other 

16 information, relating to compliance by the contractor with 

17 subsection (a)(1)(B). 

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

19 CRIMINAL HISTORY INQUIRIES.— 

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

21 Defense determines that a contractor has violated 

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

23 ‘‘(A) notify the contractor; 


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1 ‘‘(B) provide 30 days after such notifica2 tion for the contractor to appeal the determina3 tion; and 

4 ‘‘(C) issue a written warning to the con5 tractor that includes a description of the viola6 tion and the additional remedies that may apply 

7 for subsequent violations. 

8 ‘‘(2) SUBSEQUENT VIOLATIONS.—If the Sec9 retary of Defense determines that a contractor that 

10 was subject to paragraph (1) has committed a sub11 sequent violation of subsection (a)(1)(B), the Sec12 retary shall notify the contractor, shall provide 30 

13 days after such notification for the contractor to ap14 peal the determination, and, in consultation with the 

15 relevant Federal agencies, may take actions, depend16 ing on the severity of the infraction and the contrac17 tor’s history of violations, including— 

18 ‘‘(A) providing written guidance to the 

19 contractor that the contractor’s eligibility for 

20 contracts requires compliance with this section; 

21 ‘‘(B) requiring that the contractor respond 

22 within 30 days affirming that the contractor is 

23 taking steps to comply with this section; and 

24 ‘‘(C) suspending payment under the con25 tract for which the applicant was being considVerDate Sep 11 2014 03:18 Feb 16, 2019 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S387.IS S387

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1 ered until the contractor demonstrates compli2 ance with this section. 

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

4 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi5 tional offer’ means an offer of employment for a po6 sition related to work under a contract that is condi7 tioned upon the results of a criminal history inquiry. 

8 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA9 TION.—The term ‘criminal history record informa10 tion’ has the meaning given that term in section 

11 9201 of title 5.’’. 

12 (2) EFFECTIVE DATE.—Section 2339(a) of title 

13 10, United States Code, as added by paragraph (1), 

14 shall apply with respect to contracts awarded pursu15 ant to solicitations issued after the effective date de16 scribed in section 2(b)(2) of this Act. 

17 (3) CLERICAL AMENDMENT.—The table of sec18 tions for chapter 137 of title 10, United States 

19 Code, is amended by inserting after the item relating 

20 to section 2338 the following new item: 

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

21 (c) REVISIONS TO FEDERAL ACQUISITION REGULA22 TION.— 

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

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


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1 Acquisition Regulatory Council shall revise the Fed2 eral Acquisition Regulation to implement section 

3 4714 of title 41, United States Code, and section 

4 2339 of title 10, United States Code, as added by 

5 this section. 

6 (2) CONSISTENCY WITH OFFICE OF PERSONNEL

7 MANAGEMENT REGULATIONS.—The Federal Acquisi8 tion Regulatory Council shall revise the Federal Ac9 quisition Regulation under paragraph (1) to be con10 sistent with the regulations issued by the Director of 

11 the Office of Personnel Management under section 

12 2(b)(1) to the maximum extent practicable. The 

13 Council shall include together with such revision an 

14 explanation of any substantive modification of the 

15 Office of Personnel Management regulations, includ16 ing an explanation of how such modification will 

17 more effectively implement the rights and protec18 tions under this section. 

19 SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FOR20 MERLY INCARCERATED IN FEDERAL PRIS21 ONS. 

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

23 individual’’— 


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1 (1) means an individual who has completed a 

2 term of imprisonment in a Federal prison for a Fed3 eral criminal offense; and 

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

5 removed from the United States for a violation of 

6 the immigration laws (as such term is defined in sec7 tion 101 of the Immigration and Nationality Act (8 

8 U.S.C. 1101)). 

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

10 of the Bureau of Justice Statistics, in coordination with 

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

12 (1) not later than 180 days after the date of 

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

14 the employment of covered individuals after their re15 lease from Federal prison, including by collecting— 

16 (A) demographic data on covered individ17 uals, including race, age, and sex; and 

18 (B) data on employment and earnings of 

19 covered individuals who are denied employment, 

20 including the reasons for the denials; and 

21 (2) not later than 2 years after the date of en22 actment of this Act, and every 5 years thereafter, 

23 submit a report that does not include any personally 

24 identifiable information on the study conducted 

25 under paragraph (1) to— 


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1 (A) the Committee on Homeland Security 

2 and Governmental Affairs of the Senate; 

3 (B) the Committee on Health, Education, 

4 Labor, and Pensions of the Senate; 

5 (C) the Committee on Oversight and Re6 form of the House of Representatives; and 

7 (D) the Committee on Education and 

8 Labor of the House of Representatives. 

Æ 


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