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Law Limits Government Contractor Questions on Criminal History

January 13, 2020
Congress included as part of the recently enacted National Defense Authorization Act a new law that prohibits federal contractors that have openings for positions within the scope of federal contracts from inquiring about or seeking federal criminal history information from an applicant until after a conditional job offer has been extended.
The Fair Chance Act is located in title B of the National Defense Authorization Act.  
This requirement will be familiar for Massachusetts employers who have dealt with the so-called “ban- the-box issue” for many years. The only difference in the national law is that it refers to people who have been convicted of federal crimes.
 In broadening the provision to cover federal contractors, the law is intended to give federal ex-offenders a better chance to get a job with a federal contractor by moving the pre-employment question about an applicant’s previous criminal history until after a conditional job offer has been made.  
The new law contains some exceptions including: 
  • positions related to law enforcement and national security duties; 
  • positions requiring access to classified information; and 
  • positions that, by law, require a federal contractor or the federal government to obtain criminal history information before extending a conditional job offer. 
As part of the implementation process, the federal government will promulgate regulations within 18 months to identify additional excluded job positions as well as complaint procedures for applicants to use to bring concerns to the attention of the federal government. The regulations must comply with the federal Civil Rights Act to ensure there is no discriminatory intent in their implementation.
The law also provides the following penalties that may be levied against the federal contractor for violating the law:
  • Initial violation - notice and warning of violation;
  • Subsequent violations may result in the suspension of payments owed under the pertinent government contract if the federal government determines the law was violated and the employer fails to take corrective action.
The new law underscores the ongoing movement to encourage employers to consider the broadest pool of workers without arbitrarily using prior criminal history as an automatic ban on employment. 
Employers interested in learning more about this issue, employee classification under the Fair Labor Standards Act or any other hotline matter may call the AIM Employer Hotline at 800-470-6277. 
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