Fair Chance Act

II Calendar No. 69 116TH CONGRESS 1ST SESSION S. 387 [Report No. 116–33] To prohibit Federal agencies and Federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 7, 2019 Mr. BOOKER (for himself, Mr. JOHNSON, Ms. BALDWIN, Ms. ERNST, Mr. BROWN, Mr. PORTMAN, Mr. PETERS, and Ms. DUCKWORTH) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs APRIL 10, 2019 Reported by Mr. JOHNSON, with an amendment [Omit the part struck through and insert the part printed in italic] A BILL To prohibit Federal agencies and Federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 2 •S 387 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Fair Chance to Com- 2 pete for Jobs Act of 2019’’ or the ‘‘Fair Chance Act’’. 3 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 4 PRIOR TO CONDITIONAL OFFER FOR FED- 5 ERAL EMPLOYMENT. 6 (a) IN GENERAL.—Subpart H of part III of title 5, 7 United States Code, is amended by adding at the end the 8 following: 9 ‘‘CHAPTER 92—PROHIBITION ON CRIMI- 10 NAL HISTORY INQUIRIES PRIOR TO 11 CONDITIONAL OFFER 12 ‘‘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 13 ‘‘In this chapter— 14 ‘‘(1) the term ‘agency’ means ‘Executive agen- 15 cy’ as such term is defined in section 105 and in- 16 cludes— 17 ‘‘(A) the United States Postal Service and 18 the Postal Regulatory Commission; and 19 ‘‘(B) the Executive Office of the President; 20 ‘‘(2) the term ‘appointing authority’ means an 21 employee in the executive branch of the Government 22 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 3 •S 387 RS of the United States that has authority to make ap- 1 pointments to positions in the civil service; 2 ‘‘(3) the term ‘conditional offer’ means an offer 3 of employment in a position in the civil service that 4 is conditioned upon the results of a criminal history 5 inquiry; 6 ‘‘(4) the term ‘criminal history record informa- 7 tion’— 8 ‘‘(A) except as provided in subparagraphs 9 (B) and (C), has the meaning given the term in 10 section 9101(a); 11 ‘‘(B) includes any information described in 12 the first sentence of section 9101(a)(2) that has 13 been sealed or expunged pursuant to law; and 14 ‘‘(C) includes information collected by a 15 criminal justice agency, relating to an act or al- 16 leged act of juvenile delinquency, that is analo- 17 gous to criminal history record information (in- 18 cluding such information that has been sealed 19 or expunged pursuant to law); and 20 ‘‘(5) the term ‘suspension’ has the meaning 21 given the term in section 7501. 22 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 4 •S 387 RS ‘‘§ 9202. Limitations on requests for criminal history 1 record information 2 ‘‘(a) INQUIRIES PRIOR TO CONDITIONAL OFFER.— 3 Except as provided in subsections (b) and (c), an employee 4 of an agency may not request, in oral or written form (in- 5 cluding through the Declaration for Federal Employment 6 (Office of Personnel Management Optional Form 306) or 7 any similar successor form, the USAJOBS Internet Web 8 site internet website, or any other electronic means) that 9 an applicant for an appointment to a position in the civil 10 service disclose criminal history record information re- 11 garding the applicant before the appointing authority ex- 12 tends a conditional offer to the applicant. 13 ‘‘(b) OTHERWISE REQUIRED BY LAW.—The prohibi- 14 tion under subsection (a) shall not apply with respect to 15 an applicant for a position in the civil service if consider- 16 ation of criminal history record information prior to a con- 17 ditional offer with respect to the position is otherwise re- 18 quired by law. 19 ‘‘(c) EXCEPTION FOR CERTAIN POSITIONS.— 20 ‘‘(1) IN GENERAL.—The prohibition under sub- 21 section (a) shall not apply with respect to an appli- 22 cant for an appointment to a position— 23 ‘‘(A) that requires a determination of eligi- 24 bility described in clause (i), (ii), or (iii) of sec- 25 tion 9101(b)(1)(A); 26 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 5 •S 387 RS ‘‘(B) as a Federal law enforcement officer 1 (as defined in section 115(c) of title 18); or 2 ‘‘(C) identified by the Director of the Of- 3 fice of Personnel Management in the regula- 4 tions issued under paragraph (2). 5 ‘‘(2) REGULATIONS.— 6 ‘‘(A) ISSUANCE.—The Director of the Of- 7 fice of Personnel Management shall issue regu- 8 lations identifying additional positions with re- 9 spect to which the prohibition under subsection 10 (a) shall not apply, giving due consideration to 11 positions that involve interaction with minors, 12 access to sensitive information, or managing fi- 13 nancial transactions. 14 ‘‘(B) COMPLIANCE WITH CIVIL RIGHTS 15 LAWS.—The regulations issued under subpara- 16 graph (A) shall— 17 ‘‘(i) be consistent with, and in no way 18 supersede, restrict, or limit the application 19 of title VII of the Civil Rights Act of 1964 20 (42 U.S.C. 2000e et seq.) or other relevant 21 Federal civil rights laws; and 22 ‘‘(ii) ensure that all hiring activities 23 conducted pursuant to the regulations are 24 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 6 •S 387 RS conducted in a manner consistent with rel- 1 evant Federal civil rights laws. 2 ‘‘§ 9203. Agency policies; complaint procedures 3 ‘‘The Director of the Office of Personnel Manage- 4 ment shall— 5 ‘‘(1) develop, implement, and publish a policy to 6 assist employees of agencies in complying with sec- 7 tion 9202 and the regulations issued pursuant to 8 such section; and 9 ‘‘(2) establish and publish procedures under 10 which an applicant for an appointment to a position 11 in the civil service may submit a complaint, or any 12 other information, relating to compliance by an em- 13 ployee of an agency with section 9202. 14 ‘‘§ 9204. Adverse action 15 ‘‘(a) FIRST VIOLATION.—If the Director of the Office 16 of Personnel Management determines, after notice and an 17 opportunity for a hearing on the record, that an employee 18 of an agency has violated section 9202, the Director 19 shall— 20 ‘‘(1) issue to the employee a written warning 21 that includes a description of the violation and the 22 additional penalties that may apply for subsequent 23 violations; and 24 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 7 •S 387 RS ‘‘(2) file such warning in the employee’s official 1 personnel record file. 2 ‘‘(b) SUBSEQUENT VIOLATIONS.—If the Director of 3 the Office of Personnel Management determines, after no- 4 tice and an opportunity for a hearing on the record, that 5 an employee that was subject to subsection (a) has com- 6 mitted a subsequent violation of section 9202, the Director 7 may take the following action: 8 ‘‘(1) For a second violation, suspension of the 9 employee for a period of not more than 7 days. 10 ‘‘(2) For a third violation, suspension of the 11 employee for a period of more than 7 days. 12 ‘‘(3) For a fourth violation— 13 ‘‘(A) suspension of the employee for a pe- 14 riod of more than 7 days; and 15 ‘‘(B) a civil penalty against the employee 16 in an amount that is not more than $250. 17 ‘‘(4) For a fifth violation— 18 ‘‘(A) suspension of the employee for a pe- 19 riod of more than 7 days; and 20 ‘‘(B) a civil penalty against the employee 21 in an amount that is not more than $500. 22 ‘‘(5) For any subsequent violation— 23 ‘‘(A) suspension of the employee for a pe- 24 riod of more than 7 days; and 25 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 8 •S 387 RS ‘‘(B) a civil penalty against the employee 1 in an amount that is not more than $1,000. 2 ‘‘§ 9205. Procedures 3 ‘‘(a) APPEALS.—The Director of the Office of Per- 4 sonnel Management shall by rule establish procedures pro- 5 viding for an appeal from any adverse action taken under 6 section 9204 by not later than 30 days after the date of 7 the action. 8 ‘‘(b) APPLICABILITY OF OTHER LAWS.—An adverse 9 action taken under section 9204 (including a determina- 10 tion in an appeal from such an action under subsection 11 (a) of this section) shall not be subject to— 12 ‘‘(1) the procedures under chapter 75; or 13 ‘‘(2) except as provided in subsection (a) of this 14 section, appeal or judicial review. 15 ‘‘§ 9206. Rules of construction 16 ‘‘Nothing in this chapter may be construed to— 17 ‘‘(1) authorize any officer or employee of an 18 agency to request the disclosure of information de- 19 scribed under subparagraphs (B) and (C) of section 20 9201(4); or 21 ‘‘(2) create a private right of action for any 22 person.’’. 23 (b) REGULATIONS; EFFECTIVE DATE.— 24 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 9 •S 387 RS (1) REGULATIONS.—Not later than 1 year after 1 the date of enactment of this Act, the Director of 2 the Office of Personnel Management shall issue such 3 regulations as are necessary to carry out chapter 92 4 of title 5, United States Code (as added by this 5 Act). 6 (2) EFFECTIVE DATE.—Section 9202 of title 5, 7 United States Code (as added by this Act), shall 8 take effect on the date that is 2 years after the date 9 of enactment of this Act. 10 (c) TECHNICAL AND CONFORMING AMENDMENT.— 11 The table of chapters for part III of title 5, United States 12 Code, is amended by inserting after the item relating to 13 chapter 91 the following: 14 ‘‘92. Prohibition on criminal history inquiries prior to conditional offer .................................................... 9201’’. (d) APPLICATION TO LEGISLATIVE BRANCH.— 15 (1) IN GENERAL.—The Congressional Account- 16 ability Act of 1995 (2 U.S.C. 1301 et seq.) is 17 amended— 18 (A) in section 102(a) (2 U.S.C. 1302(a)), 19 by adding at the end the following: 20 ‘‘(12) Section 9202 of title 5, United States 21 Code.’’; 22 (B) by redesignating section 207 (2 U.S.C. 23 1317) as section 208; and 24 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 10 •S 387 RS (C) by inserting after section 206 (2 1 U.S.C. 1316) the following new section: 2 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI- 3 NAL HISTORY INQUIRIES. 4 ‘‘(a) DEFINITIONS.—In this section, the terms ‘agen- 5 cy’, ‘criminal history record information’, and ‘suspension’ 6 have the meanings given the terms in section 9201 of title 7 5, United States Code, except as otherwise modified by 8 this section. 9 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR- 10 IES.— 11 ‘‘(1) IN GENERAL.— 12 ‘‘(A) IN GENERAL.—Except as provided in 13 subparagraph (B), an employee of an employing 14 office may not request that an applicant for em- 15 ployment as a covered employee disclose crimi- 16 nal history record information if the request 17 would be prohibited under section 9202 of title 18 5, United States Code, if made by an employee 19 of an agency. 20 ‘‘(B) CONDITIONAL OFFER.—For purposes 21 of applying that section 9202 under subpara- 22 graph (A), a reference in that section 9202 to 23 a conditional offer shall be considered to be an 24 offer of employment as a covered employee that 25 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 11 •S 387 RS is conditioned upon the results of a criminal 1 history inquiry. 2 ‘‘(2) RULES OF CONSTRUCTION.—The provi- 3 sions of section 9206 of title 5, United States Code, 4 shall apply to employing offices, consistent with reg- 5 ulations issued under subsection (d). 6 ‘‘(c) REMEDY.— 7 ‘‘(1) IN GENERAL.—The remedy for a violation 8 of subsection (b)(1) shall be such remedy as would 9 be appropriate if awarded under section 9204 of title 10 5, United States Code, if the violation had been 11 committed by an employee of an agency, consistent 12 with regulations issued under subsection (d), except 13 that the reference in that section to a suspension 14 shall be considered to be a suspension with the level 15 of compensation provided for a covered employee 16 who is taking unpaid leave under section 202. 17 ‘‘(2) PROCESS FOR OBTAINING RELIEF.—An 18 applicant for employment as a covered employee who 19 alleges a violation of subsection (b)(1) may rely on 20 the provisions of title IV (other than section 407 or 21 408, or a provision of this title that permits a per- 22 son to obtain a civil action or judicial review), con- 23 sistent with regulations issued under subsection (d). 24 ‘‘(d) REGULATIONS TO IMPLEMENT SECTION.— 25 VerDate Sep 11 2014 23:46 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S387.RS S387 kjohnson on DSK79L0C42 with BILLS 12 •S 387 RS ‘‘(1) IN GENERAL.—Not later than 18 months 1 after the date of enactment of the Fair Chance to 2 Compete for Jobs Act of 2019, the Board shall, pur- 3 suant to section 304, issue regulations to implement 4 this section. 5 ‘‘(2) PARALLEL WITH AGENCY REGULATIONS.— 6 The regulations issued under paragraph (1) shall be 7 the same as substantive regulations issued by the 8 Director of the Office of Personnel Management 9 under section 2(b)(1) of the Fair Chance to Com- 10 pete for Jobs Act of 2019 to implement the statu- 11 tory provisions referred to in subsections (a) through 12 (c) except to the extent that the Board may deter- 13 mine, for good cause shown and stated together with 14 the regulation, that a modification of such regula- 15 tions w [Text truncated for display. Full text available on Congress.gov.]