10 U.S.C. § 4657 (ARMED FORCES)
§ 4657. 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 2019, the Secretary of Defense, in consultation with the Administrator of General Services, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.
(ii) Compliance with civil rights laws.—
The regulations issued under clause (i) shall—
(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.
(b) Complaint Procedures.—
The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a 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” means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.
(2) Criminal history record information.—
The term “criminal history record information” has the meaning given that term in section 9201 of title 5.
(Added Pub. L. 116–92, div. A, title XI, § 1123(b)(1), Dec. 20, 2019, 133 Stat. 1612, § 2339; renumbered § 4657, Pub. L. 116–283, div. A, title XVIII, § 1862(b), Jan. 1, 2021, 134 Stat. 4277.)
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.