II 

Calendar No. 69 

116TH CONGRESS 

1ST SESSION S. 387 

[Report No. 116–33] 

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, Mr. PORTMAN, Mr. PETERS, and Ms. DUCKWORTH) introduced 

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

on Homeland Security and Governmental Affairs 

APRIL 10, 2019 

Reported by Mr. JOHNSON, with an amendment 

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

A BILL 

To prohibit Federal agencies and Federal contractors from 

requesting that an applicant for employment disclose 

criminal history record information before the applicant 

has received a conditional offer, and for other purposes. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Fair Chance to Com3 pete for Jobs Act of 2019’’ or the ‘‘Fair Chance Act’’. 

4 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

5 PRIOR TO CONDITIONAL OFFER FOR FED6 ERAL EMPLOYMENT. 

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

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

9 following: 

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

12 CONDITIONAL OFFER 

‘‘Sec. 

‘‘9201. Definitions. 

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

‘‘9203. Agency policies; whistleblower complaint procedures. 

‘‘9204. Adverse action. 

‘‘9205. Procedures. 

‘‘9206. Rules of construction. 

13 ‘‘§ 9201. Definitions 

14 ‘‘In this chapter— 

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

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

19 the Postal Regulatory Commission; and 

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

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

22 employee in the executive branch of the Government 


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

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

4 of employment in a position in the civil service that 

5 is conditioned upon the results of a criminal history 

6 inquiry; 

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

9 ‘‘(A) except as provided in subparagraphs 

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

11 section 9101(a); 

12 ‘‘(B) includes any information described in 

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

14 been sealed or expunged pursuant to law; and 

15 ‘‘(C) includes information collected by a 

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

20 or expunged pursuant to law); and 

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

22 given the term in section 7501. 


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

2 record information 

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

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

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

7 (Office of Personnel Management Optional Form 306) or 

8 any similar successor form, the USAJOBS Internet Web 

9 site internet website, or any other electronic means) that 

10 an applicant for an appointment to a position in the civil 

11 service disclose criminal history record information re12 garding the applicant before the appointing authority ex13 tends a conditional offer to the applicant. 

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

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

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

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

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


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

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

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

6 ‘‘(2) REGULATIONS.— 

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

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

12 positions that involve interaction with minors, 

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

15 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS

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

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

19 supersede, restrict, or limit the application 

20 of title VII of the Civil Rights Act of 1964 

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

22 Federal civil rights laws; and 

23 ‘‘(ii) ensure that all hiring activities 

24 conducted pursuant to the regulations are 


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

3 ‘‘§ 9203. Agency policies; complaint procedures 

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

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

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

9 such section; and 

10 ‘‘(2) establish and publish procedures under 

11 which an applicant for an appointment to a position 

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

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

15 ‘‘§ 9204. Adverse action 

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

17 of Personnel Management determines, after notice and an 

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

19 of an agency has violated section 9202, the Director 

20 shall— 

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

22 that includes a description of the violation and the 

23 additional penalties that may apply for subsequent 

24 violations; and 


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

2 personnel record file. 

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

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

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

8 may take the following action: 

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

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

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

12 employee for a period of more than 7 days. 

13 ‘‘(3) For a fourth violation— 

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

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

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

18 ‘‘(4) For a fifth violation— 

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

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

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

23 ‘‘(5) For any subsequent violation— 

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


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

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

3 ‘‘§ 9205. Procedures 

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

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

8 the action. 

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

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

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

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

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

15 section, appeal or judicial review. 

16 ‘‘§ 9206. Rules of construction 

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

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

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

21 9201(4); or 

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

23 person.’’. 

24 (b) REGULATIONS; EFFECTIVE DATE.— 


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

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

3 the Office of Personnel Management shall issue such 

4 regulations as are necessary to carry out chapter 92 

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

6 Act). 

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

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

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

10 of enactment of this Act. 

11 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

14 chapter 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

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

15 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

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

18 amended— 

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

20 by adding at the end the following: 

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

22 Code.’’; 

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

24 1317) as section 208; and 


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1 (C) by inserting after section 206 (2 

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

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

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

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

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

9 this section. 

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

12 ‘‘(1) IN GENERAL.— 

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

14 subparagraph (B), an employee of an employing 

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

18 would be prohibited under section 9202 of title 

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

20 of an agency. 

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

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

24 a conditional offer shall be considered to be an 

25 offer of employment as a covered employee that 


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1 is conditioned upon the results of a criminal 

2 history inquiry. 

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

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

7 ‘‘(c) REMEDY.— 

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

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

10 be appropriate if awarded under section 9204 of title 

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

12 committed by an employee of an agency, consistent 

13 with regulations issued under subsection (d), except 

14 that the reference in that section to a suspension 

15 shall be considered to be a suspension with the level 

16 of compensation provided for a covered employee 

17 who is taking unpaid leave under section 202. 

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

19 applicant for employment as a covered employee who 

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

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

22 408, or a provision of this title that permits a per23 son to obtain a civil action or judicial review), con24 sistent with regulations issued under subsection (d). 

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


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

2 after the date of enactment of the Fair Chance to 

3 Compete for Jobs Act of 2019, the Board shall, pur4 suant to section 304, issue regulations to implement 

5 this section. 

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

7 The regulations issued under paragraph (1) shall be 

8 the same as substantive regulations issued by the 

9 Director of the Office of Personnel Management 

10 under section 2(b)(1) of the Fair Chance to Com11 pete for Jobs Act of 2019 to implement the statu12 tory provisions referred to in subsections (a) through 

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

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

17 of the rights and protections under this section. 

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

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

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

22 (2) CLERICAL AMENDMENTS.— 

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

24 the Congressional Accountability Act of 1995 

25 (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 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS 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 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS 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 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387

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•S 387 RS

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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27 

•S 387 RS

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. 


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Calendar No. 69 

116TH CONGRESS 

1ST SESSION S. 387 

[Report No. 116–33] 

A BILL 

To prohibit Federal agencies and Federal contractional offer, and for other purposes. mation before the applicant has received a condi- ployment disclose criminal history record infor- tors from requesting that an applicant for emAPRIL 10, 2019 

Reported with an amendment 


kjohnson on DSK79L0C42 with BILLS