II 

Calendar No. 344 

114TH CONGRESS 

2D SESSION S. 2021 

[Report No. 114–200] 

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 

SEPTEMBER 10, 2015 

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

BROWN, Mr. PETERS, Mr. PORTMAN, Mrs. MURRAY, Mr. KAINE, Mr. 

FRANKEN, Mr. WYDEN, and Mr. MURPHY) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

JANUARY 12, 2016 

Reported by Mr. JOHNSON, with an amendment 

[Strike out all after the enacting clause 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 2015’’ or the ‘‘Fair Chance Act’’. 

4 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

5 PRIOR TO CONDITIONAL OFFER FOR FED6 ERAL EMPLOYMENT. 

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

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

9 following: 

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

12 CONDITIONAL OFFER 

‘‘Sec. 

‘‘9201. Definitions. 

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

‘‘9203. Agency policies; whistleblower complaint procedures. 

‘‘9204. Adverse action. 

‘‘9205. Procedures. 

‘‘9206. Rules of construction. 

13 ‘‘§ 9201. Definitions 

14 ‘‘In this chapter— 

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

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

19 the Postal Regulatory Commission; and 

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

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

22 employee in the executive branch of the Government 


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

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

4 of employment in a position in the civil service that 

5 is conditioned upon the results of a criminal history 

6 inquiry; 

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

9 ‘‘(A) except as provided in subparagraph 

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

11 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 (OPM Optional Form 306), or any similar successor 

8 form), including through the USA Jobs Internet Web site 

9 or any other electronic means, that an applicant for an 

10 appointment to a position in the civil service disclose 

11 criminal history record information regarding the appli12 cant before the appointing authority extends a conditional 

13 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 SENSITIVE POSITIONS.—The 

21 prohibition under subsection (a) shall not apply with re22 spect to an applicant for an appointment to a position— 

23 ‘‘(1) that requires a determination of eligibility 

24 described in subparagraph (A), (B), or (C) of section 

25 9101(b)(1); or 


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

2 defined in section 115(c) of title 18). 

3 ‘‘§ 9203. Agency policies; whistleblower complaint 

4 procedures 

5 ‘‘The Director of the Office of Personnel Manage6 ment shall— 

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

8 assist employees of agencies in complying with sec9 tion 9202 and the regulations issued pursuant to 

10 such section; and 

11 ‘‘(2) establish and publish procedures under 

12 which an applicant for an appointment to a position 

13 in the civil service may submit to the Office of Per14 sonnel Management a complaint, or any other infor15 mation, relating to compliance by an employee of an 

16 agency with section 9202. 

17 ‘‘§ 9204. Adverse action 

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

19 of Personnel Management determines, after notice and an 

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

21 of an agency has violated section 9202, the Director 

22 shall— 

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

24 that includes a description of the violation and the 


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1 additional penalties that may apply for subsequent 

2 violations; and 

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

4 personnel record file. 

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

6 the Office of Personnel Management determines, after no7 tice and an opportunity for a hearing on the record, that 

8 an employee that was subject to subsection (a) has com9 mitted a subsequent violation of section 9202, the Director 

10 may take the following action: 

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

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

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

14 employee for a period of more than 7 days. 

15 ‘‘(3) For a fourth violation— 

16 ‘‘(A) suspension of the employee for a pe17 riod of more than 7 days; and 

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

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

20 ‘‘(4) For a fifth violation— 

21 ‘‘(A) suspension of the employee for a pe22 riod of more than 7 days; and 

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

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

25 ‘‘(5) For any subsequent violation— 


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1 ‘‘(A) suspension of the employee for a pe2 riod of more than 7 days; and 

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

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

5 ‘‘§ 9205. Procedures 

6 ‘‘(a) APPEALS.—The Director of the Office of Per7 sonnel Management shall by rule establish procedures pro8 viding for an appeal from any adverse action taken under 

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

10 the action. 

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

12 action taken under section 9204 (including a determina13 tion in an appeal from such an action under subsection 

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

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

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

17 section, appeal or judicial review. 

18 ‘‘§ 9206. Rules of construction 

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

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

21 agency to request the disclosure of information de22 scribed under subparagraphs (B) and (C) of section 

23 9201(4); or 

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

25 person.’’. 


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1 (b) REGULATIONS; EFFECTIVE DATE.— 

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

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

4 the Office of Personnel Management shall issue such 

5 regulations as are necessary to carry out chapter 92 

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

7 Act). 

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

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

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

11 of enactment of this Act. 

12 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

15 chapter 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

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

16 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

17 (1) IN GENERAL.—Part A of title II of the Con18 gressional Accountability Act of 1995 (2 U.S.C. 

19 1311 et seq.) is amended— 

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

21 by adding at the end the following: 

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

23 Code.’’; 


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

2 1317) as section 208; and 

3 (C) by inserting after section 206 (2 

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

5 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI6 NAL HISTORY INQUIRIES. 

7 ‘‘(a) DEFINITIONS.—In this section, the terms ‘agen8 cy’, ‘criminal history record information’, and ‘suspension’ 

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

10 5, United States Code, except as otherwise modified by 

11 this section. 

12 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR13 IES.— 

14 ‘‘(1) IN GENERAL.—An employee of an employ15 ing office may not request that an applicant for em16 ployment as a covered employee disclose criminal 

17 history record information if the request would be 

18 prohibited under section 9202 of title 5, United 

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

20 ‘‘(2) RULES OF CONSTRUCTION.—The provi21 sions of section 9206 of title 5, United States Code, 

22 shall apply to employing offices, consistent with reg23 ulations issued under subsection (d). 

24 ‘‘(c) REMEDY.— 


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

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

3 be appropriate if awarded under section 9204 of title 

4 5, United States Code, if the violation had been 

5 committed by an employee of an agency, consistent 

6 with regulations issued under subsection (d), except 

7 that the reference in that section to a suspension 

8 shall be considered to be a suspension with the level 

9 of compensation provided for a covered employee 

10 who is taking unpaid leave under section 202. 

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

12 applicant for employment as a covered employee who 

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

14 the provisions of title IV (other than sections 

15 404(2), 407, and 408), consistent with regulations 

16 issued under subsection (d). 

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

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

19 after the date of enactment of the Fair Chance to 

20 Compete for Jobs Act of 2015, the Board shall, pur21 suant to section 304, issue regulations to implement 

22 this section. 

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

24 The regulations issued under paragraph (1) shall be 

25 the same as substantive regulations issued by the 


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1 Director of the Office of Personnel Management 

2 under section 2(b)(1) of the Fair Chance to Com3 pete for Jobs Act of 2015 to implement the statu4 tory provisions referred to in subsections (a) through 

5 (c) except to the extent that the Board may deter6 mine, for good cause shown and stated together with 

7 the regulation, that a modification of such regula8 tions would be more effective for the implementation 

9 of the rights and protections under this section. 

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

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

12 on which section 9202 of title 5, United States Code, ap13 plies with respect to agencies.’’. 

14 (2) CLERICAL AMENDMENT.—The table of con15 tents of such Act is amended— 

16 (A) by redesignating the item relating to 

17 section 207 as the item relating to section 208; 

18 and 

19 (B) by inserting after the item relating to 

20 section 206 the following new item: 

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

21 (e) APPLICATION TO JUDICIAL BRANCH.— 

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

23 United States Code, is amended by adding at the 

24 end the following: 


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1 ‘‘(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIR2 IES.— 

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

4 ‘‘(A) the terms ‘agency’ and ‘criminal his5 tory record information’ have the meanings 

6 given those terms in section 9201 of title 5; 

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

8 employee of the judicial branch of the United 

9 States Government, other than— 

10 ‘‘(i) any judge or justice who is enti11 tled to hold office during good behavior; 

12 ‘‘(ii) a United States magistrate 

13 judge; or 

14 ‘‘(iii) a bankruptcy judge; and 

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

16 office or entity of the judicial branch of the 

17 United States Government that employs covered 

18 employees. 

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

20 not request that an applicant for employment as a 

21 covered employee disclose criminal history record in22 formation if the request would be prohibited under 

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

24 agency. 


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1 ‘‘(3) EMPLOYING OFFICE POLICIES; WHISTLE2 BLOWER COMPLAINT PROCEDURE.—The provisions 

3 of sections 9203 and 9206 of title 5 shall apply to 

4 employing offices and to applicants for employment 

5 as covered employees, consistent with regulations 

6 issued by the Director to implement this subsection. 

7 ‘‘(4) ADVERSE ACTION.— 

8 ‘‘(A) ADVERSE ACTION.—The Director 

9 may take such adverse action with respect to a 

10 covered employee who violates paragraph (2) as 

11 would be appropriate under section 9204 of 

12 title 5 if the violation had been committed by 

13 an employee of an agency. 

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

15 rule establish procedures providing for an ap16 peal from any adverse action taken under sub17 paragraph (A) by not later than 30 days after 

18 the date of the action. 

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

20 Except as provided in subparagraph (B), an ad21 verse action taken under subparagraph (A) (in22 cluding a determination in an appeal from such 

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

24 subject to appeal or judicial review. 

25 ‘‘(5) REGULATIONS TO BE ISSUED.— 


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

2 months after the date of enactment of the Fair 

3 Chance to Compete for Jobs Act of 2015, the 

4 Director shall issue regulations to implement 

5 this subsection. 

6 ‘‘(B) PARALLEL WITH AGENCY REGULA7 TIONS.—The regulations issued under subpara8 graph (A) shall be the same as substantive reg9 ulations promulgated by the Director of the Of10 fice of Personnel Management under section 

11 2(b)(1) of the Fair Chance to Compete for Jobs 

12 Act of 2015 except to the extent that the Direc13 tor of the Administrative Office of the United 

14 States Courts may determine, for good cause 

15 shown and stated together with the regulation, 

16 that a modification of such regulations would be 

17 more effective for the implementation of the 

18 rights and protections under this subsection. 

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

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

21 section 9202 of title 5 applies with respect to agen22 cies.’’. 


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1 SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY 

2 CONTRACTORS PRIOR TO CONDITIONAL 

3 OFFER. 

4 (a) CIVILIAN AGENCY CONTRACTS.— 

5 (1) IN GENERAL.—Division C of subtitle I of 

6 title 41, United States Code, is amended by adding 

7 at the end the following new section: 

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

9 contractors prior to conditional offer 

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

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

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

15 sole proprietor who submits a bid for a contract 

16 to disclose criminal history record information 

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

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

21 under such contract that the contractor may 

22 not verbally or through written form request 

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


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1 contractor extends a conditional offer to the ap2 plicant. 

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

4 prohibition under paragraph (1) does not apply with 

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

7 with respect to the position is otherwise required by 

8 law. 

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

10 The prohibition under paragraph (1) does not apply 

11 with respect to a contract that requires an individual 

12 hired under the contract to access classified informa13 tion or to have sensitive law enforcement or national 

14 security duties. 

15 ‘‘(b) WHISTLEBLOWER COMPLAINT PROCEDURES.— 

16 The Administrator of General Services shall establish and 

17 publish procedures under which an applicant for a position 

18 with a Federal contractor may submit to the Adminis19 trator a complaint, or any other information, relating to 

20 compliance by the contractor with subsection (a)(1)(B). 

21 ‘‘(c) ADVERSE ACTION FOR VIOLATIONS OF PROHIBI22 TION ON CRIMINAL HISTORY INQUIRIES.— 

23 ‘‘(1) FIRST VIOLATION.—If the head of an exec24 utive agency determines that a contractor has vio25 lated subsection (a)(1)(B), such head shall— 


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1 ‘‘(A) notify the contractor; 

2 ‘‘(B) provide 30 days after such notifica3 tion for the contractor to appeal the determina4 tion; and 

5 ‘‘(C) issue a written warning to the con6 tractor that includes a description of the viola7 tion and the additional penalties that may apply 

8 for subsequent violations. 

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

10 an executive agency determines that a contractor 

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

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

13 head shall notify the contractor, shall provide 30 

14 days after such notification for the contractor to ap15 peal the determination, and, in consultation with the 

16 relevant Federal agencies, may take actions, depend17 ing on the severity of the infraction and the contrac18 tor’s history of violations, including— 

19 ‘‘(A) providing written guidance to the 

20 contractor that the contractor’s eligibility for 

21 contracts requires compliance with this section; 

22 ‘‘(B) requiring that the contractor respond 

23 within 30 days affirming that the contractor is 

24 taking steps to comply with this section; 


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1 ‘‘(C) suspending payment under the con2 tract for which the applicant was being consid3 ered; 

4 ‘‘(D) terminating the contract under which 

5 the applicant was being considered; and 

6 ‘‘(E) referring the contractor to the sus7 pension and debarment office of the agency for 

8 consideration of actions pursuant to section 9.4 

9 of the Federal Acquisition Regulation. 

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

11 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi12 tional offer’ means an offer of employment for a po13 sition related to work under a contract that is condi14 tioned upon the results of a criminal history inquiry. 

15 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA16 TION.—The term ‘criminal history record informa17 tion’ has the meaning given that term in section 

18 9201 of title 5.’’. 

19 (2) CLERICAL AMENDMENT.—The table of sec20 tions for division C of subtitle I of title 41, United 

21 States Code, is amended by inserting after the item 

22 relating to section 4712 the following new item: 

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

23 (3) EFFECTIVE DATE.—Section 4713(a) of title 

24 41, United States Code, as added by paragraph (1), 


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1 shall apply with respect to contracts awarded pursu2 ant to solicitations issued after the effective date de3 scribed in section 2(b)(2). 

4 (b) DEFENSE CONTRACTS.— 

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

6 United States Code, is amended by adding at the 

7 end the following new section: 

8 ‘‘§ 2338. Prohibition on criminal history inquiries by 

9 contractors prior to conditional offer 

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

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

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

15 sole proprietor who submits a bid for a contract 

16 to disclose criminal history record information 

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

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

21 under such contract that the contractor may 

22 not verbally or through written form request 

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


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1 contractor extends a conditional offer to the ap2 plicant. 

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

4 prohibition under paragraph (1) does not apply with 

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

7 with respect to the position is otherwise required by 

8 law. 

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

10 The prohibition under paragraph (1) does not apply 

11 with respect to a contract that requires an individual 

12 hired under the contract to access classified informa13 tion or to have sensitive law enforcement or national 

14 security duties. 

15 ‘‘(b) WHISTLEBLOWER COMPLAINT PROCEDURES.— 

16 The Secretary of Defense shall establish and publish pro17 cedures under which an applicant for a position with a 

18 Department of Defense contractor may submit a com19 plaint, or any other information, relating to compliance 

20 by the contractor with subsection (a)(1)(B). 

21 ‘‘(c) ADVERSE ACTION FOR VIOLATIONS OF PROHIBI22 TION ON CRIMINAL HISTORY INQUIRIES.— 

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

24 Defense determines that a contractor has violated 

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


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1 ‘‘(A) notify the contractor; 

2 ‘‘(B) provide 30 days after such notifica3 tion for the contractor to appeal the determina4 tion; and 

5 ‘‘(C) issue a written warning to the con6 tractor that includes a description of the viola7 tion and the additional penalties that may apply 

8 for subsequent violations. 

9 ‘‘(2) SUBSEQUENT VIOLATIONS.—If the Sec10 retary of Defense determines that a contractor that 

11 was subject to paragraph (1) has committed a sub12 sequent violation of subsection (a)(1)(B), the Sec13 retary shall notify the contractor, shall provide 30 

14 days after such notification for the contractor to ap15 peal the determination, and, in consultation with the 

16 relevant Federal agencies, may take actions, depend17 ing on the severity of the infraction and the contrac18 tor’s history of violations, including— 

19 ‘‘(A) providing written guidance to the 

20 contractor that the contractor’s eligibility for 

21 contracts requires compliance with this section; 

22 ‘‘(B) requiring that the contractor respond 

23 within 30 days affirming that the contractor is 

24 taking steps to comply with this section; 


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1 ‘‘(C) suspending payment under the con2 tract for which the applicant was being consid3 ered; 

4 ‘‘(D) terminating the contract under which 

5 the applicant was being considered; and 

6 ‘‘(E) referring the contractor to the sus7 pension and debarment office of the agency for 

8 consideration of actions pursuant to section 9.4 

9 of the Federal Acquisition Regulation. 

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

11 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi12 tional offer’ means an offer of employment for a po13 sition related to work under a contract that is condi14 tioned upon the results of a criminal history inquiry. 

15 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA16 TION.—The term ‘criminal history record informa17 tion’ has the meaning given that term in section 

18 9201 of title 5.’’. 

19 (2) EFFECTIVE DATE.—Section 2338(a) of title 

20 10, United States Code, as added by paragraph (1), 

21 shall apply with respect to contracts awarded pursu22 ant to solicitations issued after the effective date de23 scribed in section 2(b)(2). 

24 (3) CLERICAL AMENDMENT.—The table of sec25 tions for chapter 137 of title 10, United States 


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1 Code, is amended by inserting after the item relating 

2 to section 2337 the following new item: 

‘‘2338. Prohibition on criminal history inquiries by contractors prior to conditional offer.’’. 

3 (c) REVISIONS TO FEDERAL ACQUISITION REGULA4 TION.— 

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

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

7 Acquisition Regulatory Council shall revise the Fed8 eral Acquisition Regulation to implement section 

9 4713 of title 41, United States Code, and section 

10 2338 of title 10, United States Code, as added by 

11 this section. 

12 (2) CONFORMITY WITH OFFICE OF PERSONNEL

13 MANAGEMENT REGULATIONS.—The Federal Acquisi14 tion Regulatory Council shall revise the Federal Ac15 quisition Regulation under paragraph (1) in con16 formity with the regulations issued by the Director 

17 of the Office of Personnel Management under sec18 tion 2(b)(1) to the maximum extent practicable. The 

19 Council shall include together with such revision an 

20 explanation of any substantive modification of the 

21 Office of Personnel Management regulations, includ22 ing an explanation of how such modification will 

23 more effectively implement the rights and protec24 tions under this section. 


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1 SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FOR2 MERLY INCARCERATED IN FEDERAL PRIS3 ONS. 

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

5 individual’’— 

6 (1) means an individual who has completed a 

7 term of imprisonment in a Federal prison for a Fed8 eral criminal offense; and 

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

10 removed from the United States for a violation of 

11 the immigration laws (as such term is defined in sec12 tion 101 of the Immigration and Nationality Act (8 

13 U.S.C. 1101)). 

14 (b) STUDY AND REPORT REQUIRED.—Not later than 

15 6 months after the date of enactment of this Act, and 

16 every 5 years thereafter, the Secretary of Labor, in coordi17 nation with the Director of the Bureau of the Census and 

18 the Director of the Bureau of Justice Statistics, shall— 

19 (1) conduct a study on the employment of cov20 ered individuals after their release from Federal 

21 prison, including by collecting— 

22 (A) demographic data on covered individ23 uals, including race, age, and sex; and 

24 (B) data on covered individuals who are 

25 denied employment, including the reasons for 

26 the denials; and 


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1 (2) submit a report that does not include any 

2 personally identifiable information on the study con3 ducted under paragraph (1) to— 

4 (A) the Committee on Homeland Security 

5 and Governmental Affairs of the Senate; 

6 (B) the Committee on Health, Education, 

7 Labor, and Pensions of the Senate; 

8 (C) the Committee on Oversight and Gov9 ernment Reform of the House of Representa10 tives; and 

11 (D) the Committee on Education and the 

12 Workforce of the House of Representatives. 

13 SECTION 1. SHORT TITLE. 

14 This Act may be cited as the ‘‘Fair Chance to Compete 

15 for Jobs Act of 2015’’ or the ‘‘Fair Chance Act’’. 

16 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 

17 PRIOR TO CONDITIONAL OFFER FOR FED18 ERAL EMPLOYMENT. 

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

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

21 following: 

22 ‘‘CHAPTER 92—PROHIBITION ON CRIMI23 NAL HISTORY INQUIRIES PRIOR TO 

24 CONDITIONAL OFFER 

‘‘Sec. 

‘‘9201. Definitions. 

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


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‘‘9203. Agency policies; whistleblower complaint procedures. 

‘‘9204. Adverse action. 

‘‘9205. Procedures. 

‘‘9206. Rules of construction. 

1 ‘‘§ 9201. Definitions 

2 ‘‘In this chapter— 

3 ‘‘(1) the term ‘agency’ means ‘Executive agency’ 

4 as such term is defined in section 105 and includes— 

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

6 the Postal Regulatory Commission; and 

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

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

9 employee in the executive branch of the Government 

10 of the United States that has authority to make ap11 pointments to positions in the civil service; 

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

13 of employment in a position in the civil service that 

14 is conditioned upon the results of a criminal history 

15 inquiry; 

16 ‘‘(4) the term ‘criminal history record informa17 tion’— 

18 ‘‘(A) except as provided in subparagraph 

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

20 9101(a); 

21 ‘‘(B) includes any information described in 

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

23 been sealed or expunged pursuant to law; and 


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1 ‘‘(C) includes information collected by a 

2 criminal justice agency, relating to an act or al3 leged act of juvenile delinquency, that is analo4 gous to criminal history record information (in5 cluding such information that has been sealed or 

6 expunged pursuant to law); and 

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

8 the term in section 7501. 

9 ‘‘§ 9202. Limitations on requests for criminal history 

10 record information 

11 ‘‘(a) INQUIRIES PRIOR TO CONDITIONAL OFFER.—Ex12 cept as provided in subsections (b) and (c), an employee 

13 of an agency may not request, in oral or written form (in14 cluding through the Declaration for Federal Employment 

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

16 any similar successor form), including through the 

17 USAJOBS Internet Web site or any other electronic means, 

18 that an applicant for an appointment to a position in the 

19 civil service disclose criminal history record information re20 garding the applicant before the appointing authority ex21 tends a conditional offer to the applicant. 

22 ‘‘(b) OTHERWISE REQUIRED BY LAW.—The prohibi23 tion under subsection (a) shall not apply with respect to 

24 an applicant for a position in the civil service if consider25 ation of criminal history record information prior to a conVerDate Sep 11 2014 01:19 Jan 13, 2016 Jkt 059200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6203 E:\BILLS\S2021.RS S2021

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1 ditional offer with respect to the position is otherwise re2 quired by law. 

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

4 ‘‘(1) IN GENERAL.—The prohibition under sub5 section (a) shall not apply with respect to an appli6 cant for an appointment to a position— 

7 ‘‘(A) that requires a determination of eligi8 bility described in subparagraph (A), (B), or (C) 

9 of section 9101(b)(1); 

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

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

12 ‘‘(C) identified by the Director of the Office 

13 of Personnel Management in the regulations 

14 issued under paragraph (2). 

15 ‘‘(2) REGULATIONS.— 

16 ‘‘(A) ISSUANCE.—The Director of the Office 

17 of Personnel Management shall issue regulations 

18 identifying additional positions with respect to 

19 which the prohibition under subsection (a) shall 

20 not apply, giving due consideration to positions 

21 that involve interaction with minors, access to 

22 sensitive information, or managing financial 

23 transactions. 


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1 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS

2 LAWS.—The regulations issued under subpara3 graph (A) shall— 

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

5 supersede, restrict, or limit the application 

6 of title VII of the Civil Rights Act of 1964 

7 (42 U.S.C. 2000e et seq.) or other relevant 

8 Federal civil rights laws; and 

9 ‘‘(ii) ensure that all hiring activities 

10 conducted pursuant to the regulations are 

11 conducted in a manner consistent with rel12 evant Federal civil rights laws. 

13 ‘‘§ 9203. Agency policies; complaint procedures 

14 ‘‘The Director of the Office of Personnel Management 

15 shall— 

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

17 assist employees of agencies in complying with section 

18 9202 and the regulations issued pursuant to such sec19 tion; and 

20 ‘‘(2) establish and publish procedures under 

21 which an applicant for an appointment to a position 

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

23 other information, relating to compliance by an em24 ployee of an agency with section 9202. 


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1 ‘‘§ 9204. Adverse action 

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

3 of Personnel Management determines, after notice and an 

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

5 of an agency has violated section 9202, the Director shall— 

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

7 that includes a description of the violation and the 

8 additional penalties that may apply for subsequent 

9 violations; and 

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

11 personnel record file. 

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

13 Office of Personnel Management determines, after notice 

14 and an opportunity for a hearing on the record, that an 

15 employee that was subject to subsection (a) has committed 

16 a subsequent violation of section 9202, the Director may 

17 take the following action: 

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

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

20 ‘‘(2) For a third violation, suspension of the em21 ployee for a period of more than 7 days. 

22 ‘‘(3) For a fourth violation— 

23 ‘‘(A) suspension of the employee for a period 

24 of more than 7 days; and 

25 ‘‘(B) a civil penalty against the employee in 

26 an amount that is not more than $250. 


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1 ‘‘(4) For a fifth violation— 

2 ‘‘(A) suspension of the employee for a period 

3 of more than 7 days; and 

4 ‘‘(B) a civil penalty against the employee in 

5 an amount that is not more than $500. 

6 ‘‘(5) For any subsequent violation— 

7 ‘‘(A) suspension of the employee for a period 

8 of more than 7 days; and 

9 ‘‘(B) a civil penalty against the employee in 

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

11 ‘‘§ 9205. Procedures 

12 ‘‘(a) APPEALS.—The Director of the Office of Personnel 

13 Management shall by rule establish procedures providing 

14 for an appeal from any adverse action taken under section 

15 9204 by not later than 30 days after the date of the action. 

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

17 action taken under section 9204 (including a determination 

18 in an appeal from such an action under subsection (a) of 

19 this section) shall not be subject to— 

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

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

22 section, appeal or judicial review. 

23 ‘‘§ 9206. Rules of construction 

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


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

2 agency to request the disclosure of information de3 scribed under subparagraphs (B) and (C) of section 

4 9201(4); or 

5 ‘‘(2) create a private right of action for any per6 son.’’. 

7 (b) REGULATIONS; EFFECTIVE DATE.— 

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

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

10 Office of Personnel Management shall issue such regu11 lations as are necessary to carry out chapter 92 of 

12 title 5, United States Code (as added by this Act). 

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

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

15 effect on the date that is 2 years after the date of en16 actment of this Act. 

17 (c) TECHNICAL AND CONFORMING AMENDMENT.—The 

18 table of chapters for part III of title 5, United States Code, 

19 is amended by inserting after the item relating to chapter 

20 91 the following: 

‘‘92. Prohibition on criminal history inquiries prior to 

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

21 (d) APPLICATION TO LEGISLATIVE BRANCH.— 

22 (1) IN GENERAL.—The Congressional Account23 ability Act of 1995 (2 U.S.C. 1301 et seq.) is amend24 ed— 


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

2 adding at the end the following: 

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

4 Code.’’; 

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

6 1317) as section 208; and 

7 (C) by inserting after section 206 (2 U.S.C. 

8 1316) the following new section: 

9 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI10 NAL HISTORY INQUIRIES. 

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

12 ‘criminal history record information’, and ‘suspension’ 

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

14 5, United States Code, except as otherwise modified by this 

15 section. 

16 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR17 IES.— 

18 ‘‘(1) IN GENERAL.— 

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

20 subparagraph (B), an employee of an employing 

21 office may not request that an applicant for em22 ployment as a covered employee disclose criminal 

23 history record information if the request would 

24 be prohibited under section 9202 of title 5, 


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1 United States Code, if made by an employee of 

2 an agency. 

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

4 of applying that section 9202 under subpara5 graph (A), a reference in that section 9202 to a 

6 conditional offer shall be considered to be an 

7 offer of employment as a covered employee that 

8 is conditioned upon the results of a criminal his9 tory inquiry. 

10 ‘‘(2) RULES OF CONSTRUCTION.—The provisions 

11 of section 9206 of title 5, United States Code, shall 

12 apply to employing offices, consistent with regulations 

13 issued under subsection (d). 

14 ‘‘(c) REMEDY.— 

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

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

17 appropriate if awarded under section 9204 of title 5, 

18 United States Code, if the violation had been com19 mitted by an employee of an agency, consistent with 

20 regulations issued under subsection (d), except that 

21 the reference in that section to a suspension shall be 

22 considered to be a suspension with the level of com23 pensation provided for a covered employee who is tak24 ing unpaid leave under section 202. 


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1 ‘‘(2) PROCESS FOR OBTAINING RELIEF.—An ap2 plicant for employment as a covered employee who al3 leges a violation of subsection (b)(1) may rely on the 

4 provisions of title IV (other than sections 404(2), 407, 

5 and 408), consistent with regulations issued under 

6 subsection (d). 

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

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

9 after the date of enactment of the Fair Chance to 

10 Compete for Jobs Act of 2015, the Board shall, pursu11 ant to section 304, issue regulations to implement this 

12 section. 

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

14 The regulations issued under paragraph (1) shall be 

15 the same as substantive regulations issued by the Di16 rector of the Office of Personnel Management under 

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

18 Act of 2015 to implement the statutory provisions re19 ferred to in subsections (a) through (c) except to the 

20 extent that the Board may determine, for good cause 

21 shown and stated together with the regulation, that a 

22 modification of such regulations would be more effec23 tive for the implementation of the rights and protec24 tions under this section. 


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1 ‘‘(e) EFFECTIVE DATE.—Section 102(a)(12) and sub2 sections (a) through (c) shall take effect on the date on which 

3 section 9202 of title 5, United States Code, applies with 

4 respect to agencies.’’. 

5 (2) CLERICAL AMENDMENT.—The table of con6 tents of such Act is amended— 

7 (A) by redesignating the item relating to 

8 section 207 as the item relating to section 208; 

9 and 

10 (B) by inserting after the item relating to 

11 section 206 the following new item: 

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

12 (e) APPLICATION TO JUDICIAL BRANCH.— 

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

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

15 the following: 

16 ‘‘(i) RESTRICTIONS ON CRIMINAL HISTORY INQUIR17 IES.— 

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

19 ‘‘(A) the terms ‘agency’ and ‘criminal his20 tory record information’ have the meanings 

21 given those terms in section 9201 of title 5; 

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

23 employee of the judicial branch of the United 

24 States Government, other than— 


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1 ‘‘(i) any judge or justice who is enti2 tled to hold office during good behavior; 

3 ‘‘(ii) a United States magistrate judge; 

4 or 

5 ‘‘(iii) a bankruptcy judge; and 

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

7 office or entity of the judicial branch of the 

8 United States Government that employs covered 

9 employees. 

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

11 not request that an applicant for employment as a 

12 covered employee disclose criminal history record in13 formation if the request would be prohibited under 

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

15 agency. 

16 ‘‘(3) EMPLOYING OFFICE POLICIES; COMPLAINT

17 PROCEDURE.—The provisions of sections 9203 and 

18 9206 of title 5 shall apply to employing offices and 

19 to applicants for employment as covered employees, 

20 consistent with regulations issued by the Director to 

21 implement this subsection. 

22 ‘‘(4) ADVERSE ACTION.— 

23 ‘‘(A) ADVERSE ACTION.—The Director may 

24 take such adverse action with respect to a cov25 ered employee who violates paragraph (2) as 


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1 would be appropriate under section 9204 of title 

2 5 if the violation had been committed by an em3 ployee of an agency. 

4 ‘‘(B) APPEALS.—The Director shall by rule 

5 establish procedures providing for an appeal 

6 from any adverse action taken under subpara7 graph (A) by not later than 30 days after the 

8 date of the action. 

9 ‘‘(C) APPLICABILITY OF OTHER LAWS.—Ex10 cept as provided in subparagraph (B), an ad11 verse action taken under subparagraph (A) (in12 cluding a determination in an appeal from such 

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

14 subject to appeal or judicial review. 

15 ‘‘(5) REGULATIONS TO BE ISSUED.— 

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

17 months after the date of enactment of the Fair 

18 Chance to Compete for Jobs Act of 2015, the Di19 rector shall issue regulations to implement this 

20 subsection. 

21 ‘‘(B) PARALLEL WITH AGENCY REGULA22 TIONS.—The regulations issued under subpara23 graph (A) shall be the same as substantive regu24 lations promulgated by the Director of the Office 

25 of Personnel Management under section 2(b)(1) 


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1 of the Fair Chance to Compete for Jobs Act of 

2 2015 except to the extent that the Director of the 

3 Administrative Office of the United States 

4 Courts may determine, for good cause shown and 

5 stated together with the regulation, that a modi6 fication of such regulations would be more effec7 tive for the implementation of the rights and 

8 protections under this subsection. 

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

10 (4) shall take effect on the date on which section 9202 

11 of title 5 applies with respect to agencies.’’. 

12 SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY 

13 CONTRACTORS PRIOR TO CONDITIONAL 

14 OFFER. 

15 (a) CIVILIAN AGENCY CONTRACTS.— 

16 (1) IN GENERAL.—Division C of subtitle I of 

17 title 41, United States Code, is amended by adding 

18 at the end the following new section: 

19 ‘‘§ 4713. Prohibition on criminal history inquiries by 

20 contractors prior to conditional offer 

21 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIRIES.— 

22 ‘‘(1) IN GENERAL.—Except as provided in para23 graphs (2) and (3), an executive agency— 

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

25 sole proprietor who submits a bid for a contract 


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1 to disclose criminal history record information 

2 regarding that individual or sole proprietor be3 fore determining the apparent awardee; and 

4 ‘‘(B) shall require, as a condition of receiv5 ing a Federal contract and receiving payments 

6 under such contract that the contractor may not 

7 verbally, or through written form, request the 

8 disclosure of criminal history record information 

9 regarding an applicant for a position related to 

10 work under such contract before the contractor 

11 extends a conditional offer to the applicant. 

12 ‘‘(2) OTHERWISE REQUIRED BY LAW.—The pro13 hibition under paragraph (1) does not apply with re14 spect 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 duties; 

25 or 


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1 ‘‘(ii) a position that the Administrator 

2 of General Services identifies under the reg3 ulations issued under subparagraph (B). 

4 ‘‘(B) REGULATIONS.— 

5 ‘‘(i) ISSUANCE.—Not later than 16 

6 months after the date of enactment of the 

7 Fair Chance to Compete for Jobs Act of 

8 2015, the Administrator of General Serv9 ices, in consultation with the Secretary of 

10 Defense, shall issue regulations identifying 

11 additional positions with respect to which 

12 the prohibition under paragraph (1) shall 

13 not apply, giving due consideration to posi14 tions that involve interaction with minors, 

15 access to sensitive information, or man16 aging financial transactions. 

17 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

18 LAWS.—The regulations issued under clause 

19 (i) shall— 

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

21 way supersede, restrict, or limit the 

22 application of title VII of the Civil 

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

24 seq.) or other relevant Federal civil 

25 rights laws; and 


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1 ‘‘(II) ensure that all hiring activi2 ties conducted pursuant to the regula3 tions are conducted in a manner con4 sistent with relevant Federal civil 

5 rights laws. 

6 ‘‘(b) COMPLAINT PROCEDURES.—The Administrator of 

7 General Services shall establish and publish procedures 

8 under which an applicant for a position with a Federal 

9 contractor may submit to the Administrator a complaint, 

10 or any other information, relating to compliance by the 

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

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

13 CRIMINAL HISTORY INQUIRIES.— 

14 ‘‘(1) FIRST VIOLATION.—If the head of an execu15 tive agency determines that a contractor has violated 

16 subsection (a)(1)(B), such head shall— 

17 ‘‘(A) notify the contractor; 

18 ‘‘(B) provide 30 days after such notification 

19 for the contractor to appeal the determination; 

20 and 

21 ‘‘(C) issue a written warning to the con22 tractor that includes a description of the viola23 tion and the additional remedies that may apply 

24 for subsequent violations. 


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

2 executive agency determines that a contractor that 

3 was subject to paragraph (1) has committed a subse4 quent violation of subsection (a)(1)(B), such head 

5 shall notify the contractor, shall provide 30 days after 

6 such notification for the contractor to appeal the de7 termination, and, in consultation with the relevant 

8 Federal agencies, may take actions, depending on the 

9 severity of the infraction and the contractor’s history 

10 of violations, including— 

11 ‘‘(A) providing written guidance to the con12 tractor that the contractor’s eligibility for con13 tracts requires compliance with this section; 

14 ‘‘(B) requiring that the contractor respond 

15 within 30 days affirming that the contractor is 

16 taking steps to comply with this section; and 

17 ‘‘(C) suspending payment under the con18 tract for which the applicant was being consid19 ered until the contractor demonstrates compli20 ance with this section. 

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

22 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi23 tional offer’ means an offer of employment for a posi24 tion related to work under a contract that is condi25 tioned upon the results of a criminal history inquiry. 


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1 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA2 TION.—The term ‘criminal history record informa3 tion’ has the meaning given that term in section 9201 

4 of title 5.’’. 

5 (2) CLERICAL AMENDMENT.—The table of sec6 tions for division C of subtitle I of title 41, United 

7 States Code, is amended by inserting after the item 

8 relating to section 4712 the following new item: 

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

9 (3) EFFECTIVE DATE.—Section 4713(a) of title 

10 41, United States Code, as added by paragraph (1), 

11 shall apply with respect to contracts awarded pursu12 ant to solicitations issued after the effective date de13 scribed in section 2(b)(2) of this Act. 

14 (b) DEFENSE CONTRACTS.— 

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

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

17 the following new section: 

18 ‘‘§ 2338. Prohibition on criminal history inquiries by 

19 contractors prior to conditional offer 

20 ‘‘(a) LIMITATION ON CRIMINAL HISTORY INQUIRIES.— 

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

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

24 sole proprietor who submits a bid for a contract 


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1 to disclose criminal history record information 

2 regarding that individual or sole proprietor be3 fore determining the apparent awardee; and 

4 ‘‘(B) shall require as a condition of receiv5 ing a Federal contract and receiving payments 

6 under such contract that the contractor may not 

7 verbally or through written form request the dis8 closure of criminal history record information 

9 regarding an applicant for a position related to 

10 work under such contract before such contractor 

11 extends a conditional offer to the applicant. 

12 ‘‘(2) OTHERWISE REQUIRED BY LAW.—The pro13 hibition under paragraph (1) does not apply with re14 spect 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 duties; 

25 or 


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

2 Defense identifies under the regulations 

3 issued under subparagraph (B). 

4 ‘‘(B) REGULATIONS.— 

5 ‘‘(i) ISSUANCE.—Not later than 16 

6 months after the date of enactment of the 

7 Fair Chance to Compete for Jobs Act of 

8 2015, the Secretary of Defense, in consulta9 tion with the Administrator of General 

10 Services, shall issue regulations identifying 

11 additional positions with respect to which 

12 the prohibition under paragraph (1) shall 

13 not apply, giving due consideration to posi14 tions that involve interaction with minors, 

15 access to sensitive information, or man16 aging financial transactions. 

17 ‘‘(ii) COMPLIANCE WITH CIVIL RIGHTS

18 LAWS.—The regulations issued under clause 

19 (i) shall— 

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

21 way supersede, restrict, or limit the 

22 application of title VII of the Civil 

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

24 seq.) or other relevant Federal civil 

25 rights laws; and 


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1 ‘‘(II) ensure that all hiring activi2 ties conducted pursuant to the regula3 tions are conducted in a manner con4 sistent with relevant Federal civil 

5 rights laws. 

6 ‘‘(b) COMPLAINT PROCEDURES.—The Secretary of De7 fense shall establish and publish procedures under which an 

8 applicant for a position with a Department of Defense con9 tractor may submit a complaint, or any other information, 

10 relating to compliance by the contractor with subsection 

11 (a)(1)(B). 

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

13 CRIMINAL HISTORY INQUIRIES.— 

14 ‘‘(1) FIRST VIOLATION.—If the Secretary of De15 fense determines that a contractor has violated sub16 section (a)(1)(B), the Secretary shall— 

17 ‘‘(A) notify the contractor; 

18 ‘‘(B) provide 30 days after such notification 

19 for the contractor to appeal the determination; 

20 and 

21 ‘‘(C) issue a written warning to the con22 tractor that includes a description of the viola23 tion and the additional remedies that may apply 

24 for subsequent violations. 


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1 ‘‘(2) SUBSEQUENT VIOLATIONS.—If the Secretary 

2 of Defense determines that a contractor that was sub3 ject to paragraph (1) has committed a subsequent vio4 lation of subsection (a)(1)(B), the Secretary shall no5 tify the contractor, shall provide 30 days after such 

6 notification for the contractor to appeal the deter7 mination, and, in consultation with the relevant Fed8 eral agencies, may take actions, depending on the se9 verity of the infraction and the contractor’s history of 

10 violations, including— 

11 ‘‘(A) providing written guidance to the con12 tractor that the contractor’s eligibility for con13 tracts requires compliance with this section; 

14 ‘‘(B) requiring that the contractor respond 

15 within 30 days affirming that the contractor is 

16 taking steps to comply with this section; and 

17 ‘‘(C) suspending payment under the con18 tract for which the applicant was being consid19 ered until the contractor demonstrates compli20 ance with this section. 

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

22 ‘‘(1) CONDITIONAL OFFER.—The term ‘condi23 tional offer’ means an offer of employment for a posi24 tion related to work under a contract that is condi25 tioned upon the results of a criminal history inquiry. 


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1 ‘‘(2) CRIMINAL HISTORY RECORD INFORMA2 TION.—The term ‘criminal history record informa3 tion’ has the meaning given that term in section 9201 

4 of title 5.’’. 

5 (2) EFFECTIVE DATE.—Section 2338(a) of title 

6 10, United States Code, as added by paragraph (1), 

7 shall apply with respect to contracts awarded pursu8 ant to solicitations issued after the effective date de9 scribed in section 2(b)(2) of this Act. 

10 (3) CLERICAL AMENDMENT.—The table of sec11 tions for chapter 137 of title 10, United States Code, 

12 is amended by inserting after the item relating to sec13 tion 2337 the following new item: 

‘‘2338. Prohibition on criminal history inquiries by contractors prior to conditional offer.’’. 

14 (c) REVISIONS TO FEDERAL ACQUISITION REGULA15 TION.— 

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

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

18 Acquisition Regulatory Council shall revise the Fed19 eral Acquisition Regulation to implement section 

20 4713 of title 41, United States Code, and section 2338 

21 of title 10, United States Code, as added by this sec22 tion. 

23 (2) CONSISTENCY WITH OFFICE OF PERSONNEL

24 MANAGEMENT REGULATIONS.—The Federal AcquisiVerDate Sep 11 2014 01:19 Jan 13, 2016 Jkt 059200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6203 E:\BILLS\S2021.RS S2021

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1 tion Regulatory Council shall revise the Federal Ac2 quisition Regulation under paragraph (1) to be con3 sistent with the regulations issued by the Director of 

4 the Office of Personnel Management under section 

5 2(b)(1) to the maximum extent practicable. The Coun6 cil shall include together with such revision an expla7 nation of any substantive modification of the Office 

8 of Personnel Management regulations, including an 

9 explanation of how such modification will more effec10 tively implement the rights and protections under this 

11 section. 

12 SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FOR13 MERLY INCARCERATED IN FEDERAL PRIS14 ONS. 

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

16 individual’’— 

17 (1) means an individual who has completed a 

18 term of imprisonment in a Federal prison for a Fed19 eral criminal offense; and 

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

21 removed from the United States for a violation of the 

22 immigration laws (as such term is defined in section 

23 101 of the Immigration and Nationality Act (8 

24 U.S.C. 1101)). 


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1 (b) STUDY AND REPORT REQUIRED.—The Director of 

2 the Bureau of Justice Statistics, in coordination with the 

3 Director of the Bureau of the Census, shall— 

4 (1) not later than 6 months after the date of en5 actment of this Act, design and initiate a study on 

6 the employment of covered individuals after their re7 lease from Federal prison, including by collecting— 

8 (A) demographic data on covered individ9 uals, including race, age, and sex; and 

10 (B) data on employment and earnings of 

11 covered individuals who are denied employment, 

12 including the reasons for the denials; and 

13 (2) not later than 2 years after the date of enact14 ment of this Act, and every 5 years thereafter, submit 

15 a report that does not include any personally identifi16 able information on the study conducted under para17 graph (1) to— 

18 (A) the Committee on Homeland Security 

19 and Governmental Affairs of the Senate; 

20 (B) the Committee on Health, Education, 

21 Labor, and Pensions of the Senate; 

22 (C) the Committee on Oversight and Gov23 ernment Reform of the House of Representatives; 

24 and 


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1 (D) the Committee on Education and the 

2 Workforce of the House of Representatives. 


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Calendar No. 344 

114TH CONGRESS 

2D SESSION S. 2021 

[Report No. 114–200] 

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 emJANUARY 12, 2016 

Reported with an amendment 


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