Fair Chance to Compete for Jobs Act of 2017

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. Short title This Act may be cited as the Fair Chance to Compete for Jobs Act of 2017 Fair Chance Act 2. Prohibition on criminal history inquiries prior to conditional offer for Federal employment (a) In general Subpart H of part III of title 5, United States Code, is amended by adding at the end the following: 92 Prohibition on criminal history inquiries prior to 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. 9201. Definitions In this chapter— (1) the term agency Executive agency (A) the United States Postal Service and the Postal Regulatory Commission; and (B) the Executive Office of the President; (2) the term appointing authority (3) the term conditional offer (4) the term criminal history record information (A) except as provided in subparagraph (B) subparagraphs (B) and (C) (B) includes any information described in the first sentence of section 9101(a)(2) that has been sealed or expunged pursuant to law; and (C) includes information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record information (including such information that has been sealed or expunged pursuant to law); and (5) the term suspension 9202. Limitations on requests for criminal history record information (a) Inquiries prior to conditional offer Except as provided in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (Office of Personnel Management Optional Form 306) , ) including through , , ) (b) Otherwise required by law The prohibition under subsection (a) shall not apply with respect to an applicant for a position in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. (c) Exception for certain positions (1) In general The prohibition under subsection (a) shall not apply with respect to an applicant for an appointment to a position— (A) that requires a determination of eligibility described in clause (i), (ii), or (iii) of section 9101(b)(1)(A); (B) as a Federal law enforcement officer (as defined in section 115(c) of title 18); or (C) identified by the Director of the Office of Personnel Management in the regulations issued under paragraph (2). (2) Regulations (A) Issuance The Director of the Office of Personnel Management shall issue regulations identifying additional positions with respect to which the prohibition under subsection (a) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions. (B) Compliance with civil rights laws The regulations issued under subparagraph (A) shall— (i) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (ii) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. 9203. Agency policies; complaint procedures The Director of the Office of Personnel Management shall— (1) develop, implement, and publish a policy to assist employees of agencies in complying with section 9202 and the regulations issued pursuant to such section; and (2) establish and publish procedures under which an applicant for an appointment to a position in the civil service may submit a complaint, or any other information, relating to compliance by an employee of an agency with section 9202. 9204. Adverse action (a) First violation If the Director of the Office of Personnel Management determines, after notice and an opportunity for a hearing on the record, that an employee of an agency has violated section 9202, the Director shall— (1) issue to the employee a written warning that includes a description of the violation and the additional penalties that may apply for subsequent violations; and (2) file such warning in the employee’s official personnel record file. (b) Subsequent violations If the Director of the Office of Personnel Management determines, after notice and an opportunity for a hearing on the record, that an employee that was subject to subsection (a) has committed a subsequent violation of section 9202, the Director may take the following action: (1) For a second violation, suspension of the employee for a period of not more than 7 days. (2) For a third violation, suspension of the employee for a period of more than 7 days. (3) For a fourth violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $250. (4) For a fifth violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $500. (5) For any subsequent violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $1,000. 9205. Procedures (a) Appeals The Director of the Office of Personnel Management shall by rule establish procedures providing for an appeal from any adverse action taken under section 9204 by not later than 30 days after the date of the action. (b) Applicability of other laws An adverse action taken under section 9204 (including a determination in an appeal from such an action under subsection (a) of this section) shall not be subject to— (1) the procedures under chapter 75; or (2) except as provided in subsection (a) of this section, appeal or judicial review. 9206. Rules of construction Nothing in this chapter may be construed to— (1) authorize any officer or employee of an agency to request the disclosure of information described under subparagraphs (B) and (C) of section 9201(4); or (2) create a private right of action for any person. . (b) Regulations; effective date (1) Regulations Not later than 1 year after the date of enactment of this Act, the Director of the Office of Personnel Management shall issue such regulations as are necessary to carry out chapter 92 (2) Effective date Section 9202 of title 5, United States Code (as added by this Act), shall take effect on the date that is 2 years after the date of enactment of this Act. (c) Technical and conforming amendment The table of chapters for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 91 the following: 92. Prohibition on criminal history inquiries prior to conditional offer 9201 . (d) Application to Legislative Branch (1) In general The Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 (A) in section 102(a) ( 2 U.S.C. 1302(a) (12) Section 9202 of title 5, United States Code. ; (B) by redesignating section 207 ( 2 U.S.C. 1317 (C) by inserting after section 206 ( 2 U.S.C. 1316 207. Rights and protections relating to criminal history inquiries (a) Definitions In this section, the terms agency criminal history record information suspension (b) Restrictions on criminal history inquiries (1) In general (A) In general Except as provided in subparagraph (B), an employee of an employing office may not request that an applicant for employment as a covered employee disclose criminal history record information if the request would be prohibited under section 9202 of title 5, United States Code, if made by an employee of an agency. (B) Conditional offer For purposes of applying that section 9202 under subparagraph (A), a reference in that section 9202 to a conditional offer shall be considered to be an offer of employment as a covered employee that is conditioned upon the results of a criminal history inquiry. (2) Rules of construction The provisions of section 9206 of title 5, United States Code, shall apply to employing offices, consistent with regulations issued under subsection (d). (c) Remedy (1) In general The remedy for a violation of subsection (b)(1) shall be such remedy as would be appropriate if awarded under section 9204 of title 5, United States Code, if the violation had been committed by an employee of an agency, consistent with regulations issued under subsection (d), except that the reference in that section to a suspension shall be considered to be a suspension with the level of compensation provided for a covered employee who is taking unpaid leave under section 202. (2) Process for obtaining relief An applicant for employment as a covered employee who alleges a violation of subsection (b)(1) may rely on the provisions of title IV (other than sections 404(2), 407, and 408), consistent with regulations issued under subsection (d). (d) Regulations To implement section (1) In general Not later than 18 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2017 (2) Parallel with agency regulations The regulations issued under paragraph (1) shall be the same as substantive regulations issued by the Director of the Office of Personnel Management under section 2(b)(1) of the Fair Chance to Compete for Jobs Act of 2017 (e) Effective Date Section 102(a)(12) and subsections (a) through (c) shall take effect on the date on which section 9202 of title 5, United States Code, applies with respect to agencies. . (2) Clerical amendment The table of contents of such Act is amended— (A) by redesignating the item relating to section 207 as the item relating to section 208; and (B) by inserting after the item relating to section 206 the following new item: Sec. 207. Rights and protections relating to criminal history inquiries. . (2) Clerical amendments (A) The table of contents in section 1(b) of the Congressional Accountability Act of 1995 ( Public Law 104–1 (i) by redesignating the item relating to section 207 as the item relating to section 208; and (ii) by inserting after the item relating to section 206 the following new item: Sec. 207. Rights and protections relating to criminal history inquiries. . (B) Section 62(e)(2) 207 208 (e) Application to judicial branch (1) In general Section 604 of title 28, United States Code, is amended by adding at the end the following: (i) Restrictions on criminal history inquiries (1) Definitions In this subsection— (A) the terms agency criminal history record information (B) the term covered employee (i) any judge or justice who is entitled to hold office during good behavior; (ii) a United States magistrate judge; or (iii) a bankruptcy judge; and (C) the term employing office (2) Restriction A covered employee may not request that an applicant for employment as a covered employee disclose criminal history record information if the request would be prohibited under section 9202 of title 5 if made by an employee of an agency. (3) Employing office policies; complaint procedure The provisions of sections 9203 and 9206 of title 5 shall apply to employing offices and to applicants for employment as covered employees, consistent with regulations issued by the Director to implement this subsection. (4) Adverse action (A) Adverse action The Director may take such adverse action with respect to a covered employee who violates paragraph (2) as would be appropriate under section 9204 of title 5 if the violation had been committed by an employee of an agency. (B) Appeals The Director shall by rule establish procedures providing for an appeal from any adverse action taken under subparagraph (A) by not later than 30 days after the date of the action. (C) Applicability of other laws Except as provided in subparagraph (B), an adverse action taken under subparagraph (A) (including a determination in an appeal from such an action under subparagraph (B)) shall not be subject to appeal or judicial review. (5) Regulations to be issued (A) In general Not later than 18 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2017 (B) Parallel with agency regulations The regulations issued under subparagraph (A) shall be the same as substantive regulations promulgated by the Director of the Office of Personnel Management under section 2(b)(1) of the Fair Chance to Compete for Jobs Act of 2017 (6) Effective date Paragraphs (1) through (4) shall take effect on the date on which section 9202 of title 5 applies with respect to agencies. . 3. Prohibition on criminal history inquiries by contractors prior to conditional offer (a) Civilian agency contracts (1) In general Chapter 47 4713. Prohibition on criminal history inquiries by contractors prior to conditional offer (a) Limitation on criminal history inquiries (1) In general Except as provided in paragraphs (2) and (3), an executive agency— (A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and (B) shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant. (2) Otherwise required by law The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. (3) Exception for certain positions (A) In general The prohibition under paragraph (1) does not apply with respect to— (i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or (ii) a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B). (B) Regulations (i) Issuance Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2017 (ii) Compliance with civil rights laws The regulations issued under clause (i) shall— (I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. (b) Complaint procedures The Administrator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may submit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). (c) Action for violations of prohibition on criminal history inquiries (1) First violation If the head of an executive agency determines that a contractor has violated subsection (a)(1)(B), such head shall— (A) notify the contractor; (B) provide 30 days after such notification for the contractor to appeal the determination; and (C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations. (2) Subsequent violation If the head of an executive agency determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), such head shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including— (A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section; (B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and (C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section. (d) Definitions In this section: (1) Conditional offer The term conditional offer (2) Criminal history record information The term criminal history record information . (2) Clerical amendment The table of sections for chapter 47 section 4712 4713. Prohibition on criminal history inquiries by contractors prior to conditional offer. . (3) Effective date Section 4713 of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 2(b)(2) of this Act. (b) Defense contracts (1) In general Chapter 137 2339A. Prohibition on criminal history inquiries by contractors prior to conditional offer (a) Limitation on criminal history inquiries (1) In general Except as provided in paragraphs (2) and (3), the head of an agency— (A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and (B) shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant. (2) Otherwise required by law The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. (3) Exception for certain positions (A) In general The prohibition under paragraph (1) does not apply with respect to— (i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or (ii) a position that the Secretary of Defense identifies under the regulations issued under subparagraph (B). (B) Regulations (i) Issuance Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2017 (ii) Compliance with civil rights laws The regulations issued under clause (i) shall— (I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. (b) Complaint procedures The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). (c) Action for violations of prohibition on criminal history inquiries (1) First violation If the Secretary of Defense determines that a contractor has violated subsection (a)(1)(B), the Secretary shall— (A) notify the contractor; (B) provide 30 days after such notification for the contractor to appeal the determination; and (C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations. (2) Subsequent violations If the Secretary of Defense determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including— (A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section; (B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and (C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section. (d) Definitions In this section: (1) Conditional offer The term conditional offer (2) Criminal history record information The term criminal history record information . (2) Effective date Section 2339A(a) of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 2(b)(2) of this Act. (3) Clerical amendment The table of sections for chapter 137 section 2339 2339A. Prohibition on criminal history inquiries by contractors prior to conditional offer. . (c) Revisions to Federal Acquisition Regulation (1) In general Not later than 18 months after the date of enactment of this Act, the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement section 4713 of title 41, United States Code, and section 2339A of title 10, United States Code, as added by this section. (2) Consistency with Office of Personnel Management regulations The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation under paragraph (1) to be consistent with the regulations issued by the Director of the Office of Personnel Management under section 2(b)(1) to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management regulations, including an explanation of how such modification will more effectively implement the rights and protections under this section. 4. Report on employment of individuals formerly incarcerated in Federal prisons (a) Definition In this section, the term covered individual (1) means an individual who has completed a term of imprisonment in a Federal prison for a Federal criminal offense; and (2) does not include an alien who is or will be removed from the United States for a violation of the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act ( 8 U.S.C. 1101 (b) Study and report required The Director of the Bureau of Justice Statistics, in coordination with the Director of the Bureau of the Census, shall— (1) not later than 6 months after the date of enactment of this Act, design and initiate a study on the employment of covered individuals after their release from Federal prison, including by collecting— (A) demographic data on covered individuals, including race, age, and sex; and (B) data on employment and earnings of covered individuals who are denied employment, including the reasons for the denials; and (2) not later than 2 years after the date of enactment of this Act, and every 5 years thereafter, submit a report that does not include any personally identifiable information on the study conducted under paragraph (1) to— (A) the Committee on Homeland Security and Governmental Affairs of the Senate; (B) the Committee on Health, Education, Labor, and Pensions of the Senate; (C) the Committee on Oversight and Government Reform of the House of Representatives; and (D) the Committee on Education and the Workforce of the House of Representatives. September 25, 2017 Reported with amendments

Summary: Fair Chance to Compete for Jobs Act of 2017 or the Fair Chance Act This bill prohibits: (1) federal agencies and federal contractors from requesting that applicants for employment disclose criminal history record information before receiving a conditional offer of employment, and (2) agencies from requiring an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee. The bill: (1) sets forth positions to which such prohibitions shall not apply, such as positions for which prior consideration of criminal history record information is otherwise required by law, positions with law enforcement and national security duties, and positions requiring access to classified information; and (2) requires the Office of Personnel Management (OPM), the General Services Administration (GSA), and the Department of Defense (DOD) to issue regulations identifying additional positions with respect to which the prohibition shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions, consistent with relevant federal civil rights laws. The OPM, the Office of Compliance, the Administrative Office of the United States Courts, the GSA, and DOD must: (1) establish procedures for submitting complaints about, and taking actions against, agency employees and contractors for violating such prohibitions and for appealing such an action; and (2) issue regulations to implement this bill. The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement the requirements of this bill. The Bureau of Justice Statistics, in coordination with the Bureau of the Census, must: (1) design and initiate a study on the employment of individuals who are released from federal prison after completing a term of imprisonment for a federal criminal offense, and (2) report to Congress at specified intervals.