Fair Chance Act

IB Union Calendar No. 301 116TH CONGRESS 2D SESSION H. R. 1076 [Report No. 116–380, Part I] 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 HOUSE OF REPRESENTATIVES FEBRUARY 7, 2019 Mr. CUMMINGS (for himself and Mr. COLLINS of Georgia) introduced the fol- lowing bill; which was referred to the Committee on Oversight and Re- form, and in addition to the Committees on House Administration, the Judiciary, Armed Services, and Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee con- cerned JANUARY 24, 2020 Additional sponsors: Mr. NADLER, Mr. RASKIN, Ms. NORTON, Mr. KHANNA, Ms. OCASIO-CORTEZ, Mr. CONNOLLY, Mrs. CAROLYN B. MALONEY of New York, Ms. PRESSLEY, Mr. TRONE, Mr. COHEN, Mr. BUDD, Mr. THOMPSON of California, Mr. SARBANES, Mr. CISNEROS, Mr. DESAULNIER, Mr. RYAN, Ms. SCHAKOWSKY, Mr. LYNCH, Mr. HASTINGS, Mr. TAKANO, Mr. MORELLE, Mr. PAPPAS, Mr. SMITH of Washington, and Mr. PASCRELL JANUARY 24, 2020 Reported from the Committee on Oversight and Reform with an amendment [Strike out all after the enacting clause and insert the part printed in italic] VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1076 RH JANUARY 24, 2020 Committees on House Administration, the Judiciary, Armed Services, and Education and Labor discharged, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed [For text of introduced bill, see copy of bill as introduced on February 7, 2019] 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. VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1076 RH Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fair Chance to Compete 4 for Jobs Act of 2019’’ or the ‘‘Fair Chance Act’’. 5 SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES 6 PRIOR TO CONDITIONAL OFFER FOR FED- 7 ERAL EMPLOYMENT. 8 (a) IN GENERAL.—Subpart H of part III of title 5, 9 United States Code, is amended by adding at the end the 10 following: 11 ‘‘CHAPTER 92—PROHIBITION ON CRIMI- 12 NAL HISTORY INQUIRIES PRIOR TO 13 CONDITIONAL OFFER 14 ‘‘Sec. ‘‘9201. Definitions. ‘‘9202. Limitations on requests for criminal history record information. ‘‘9203. Agency policies; complaint procedures. ‘‘9204. Adverse action. ‘‘9205. Procedures. ‘‘9206. Rules of construction. ‘‘§ 9201. Definitions 15 ‘‘In this chapter— 16 ‘‘(1) the term ‘agency’ means ‘Executive agency’ 17 as such term is defined in section 105 and includes— 18 ‘‘(A) the United States Postal Service and 19 the Postal Regulatory Commission; and 20 ‘‘(B) the Executive Office of the President; 21 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1076 RH ‘‘(2) the term ‘appointing authority’ means an 1 employee in the executive branch of the Government 2 of the United States that has authority to make ap- 3 pointments to positions in the civil service; 4 ‘‘(3) the term ‘conditional offer’ means an offer 5 of employment in a position in the civil service that 6 is conditioned upon the results of a criminal history 7 inquiry; 8 ‘‘(4) the term ‘criminal history record informa- 9 tion’— 10 ‘‘(A) except as provided in subparagraphs 11 (B) and (C), has the meaning given the term in 12 section 9101(a); 13 ‘‘(B) includes any information described in 14 the first sentence of section 9101(a)(2) that has 15 been sealed or expunged pursuant to law; and 16 ‘‘(C) includes information collected by a 17 criminal justice agency, relating to an act or al- 18 leged act of juvenile delinquency, that is analo- 19 gous to criminal history record information (in- 20 cluding such information that has been sealed or 21 expunged pursuant to law); and 22 ‘‘(5) the term ‘suspension’ has the meaning given 23 the term in section 7501. 24 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1076 RH ‘‘§ 9202. Limitations on requests for criminal history 1 record information 2 ‘‘(a) INQUIRIES PRIOR TO CONDITIONAL OFFER.—Ex- 3 cept 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 website, 8 or any other electronic means) that an applicant for an 9 appointment to a position in the civil service disclose crimi- 10 nal history record information regarding the applicant be- 11 fore the appointing authority extends a conditional offer to 12 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 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1076 RH ‘‘(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 Office 3 of Personnel Management in the regulations 4 issued under paragraph (2). 5 ‘‘(2) REGULATIONS.— 6 ‘‘(A) ISSUANCE.—The Director of the Office 7 of Personnel Management shall issue regulations 8 identifying additional positions with respect to 9 which the prohibition under subsection (a) shall 10 not apply, giving due consideration to positions 11 that involve interaction with minors, access to 12 sensitive information, or managing financial 13 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 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1076 RH 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 Management 4 shall— 5 ‘‘(1) develop, implement, and publish a policy to 6 assist employees of agencies in complying with section 7 9202 and the regulations issued pursuant to such sec- 8 tion; 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 shall— 19 ‘‘(1) issue to the employee a written warning 20 that includes a description of the violation and the 21 additional penalties that may apply for subsequent 22 violations; and 23 ‘‘(2) file such warning in the employee’s official 24 personnel record file. 25 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1076 RH ‘‘(b) SUBSEQUENT VIOLATIONS.—If the Director of the 1 Office of Personnel Management determines, after notice 2 and an opportunity for a hearing on the record, that an 3 employee that was subject to subsection (a) has committed 4 a subsequent violation of section 9202, the Director may 5 take the following action: 6 ‘‘(1) For a second violation, suspension of the 7 employee for a period of not more than 7 days. 8 ‘‘(2) For a third violation, suspension of the em- 9 ployee for a period of more than 7 days. 10 ‘‘(3) For a fourth violation— 11 ‘‘(A) suspension of the employee for a period 12 of more than 7 days; and 13 ‘‘(B) a civil penalty against the employee in 14 an amount that is not more than $250. 15 ‘‘(4) For a fifth violation— 16 ‘‘(A) suspension of the employee for a period 17 of more than 7 days; and 18 ‘‘(B) a civil penalty against the employee in 19 an amount that is not more than $500. 20 ‘‘(5) For any subsequent violation— 21 ‘‘(A) suspension of the employee for a period 22 of more than 7 days; and 23 ‘‘(B) a civil penalty against the employee in 24 an amount that is not more than $1,000. 25 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 1076 RH ‘‘§ 9205. Procedures 1 ‘‘(a) APPEALS.—The Director of the Office of Personnel 2 Management shall by rule establish procedures providing 3 for an appeal from any adverse action taken under section 4 9204 by not later than 30 days after the date of the action. 5 ‘‘(b) APPLICABILITY OF OTHER LAWS.—An adverse 6 action taken under section 9204 (including a determination 7 in an appeal from such an action under subsection (a) of 8 this section) shall not be subject to— 9 ‘‘(1) the procedures under chapter 75; or 10 ‘‘(2) except as provided in subsection (a) of this 11 section, appeal or judicial review. 12 ‘‘§ 9206. Rules of construction 13 ‘‘Nothing in this chapter may be construed to— 14 ‘‘(1) authorize any officer or employee of an 15 agency to request the disclosure of information de- 16 scribed under subparagraphs (B) and (C) of section 17 9201(4); or 18 ‘‘(2) create a private right of action for any per- 19 son.’’. 20 (b) REGULATIONS; EFFECTIVE DATE.— 21 (1) REGULATIONS.—Not later than 1 year after 22 the date of enactment of this Act, the Director of the 23 Office of Personnel Management shall issue such regu- 24 lations as are necessary to carry out chapter 92 of 25 title 5, United States Code (as added by this Act). 26 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 1076 RH (2) EFFECTIVE DATE.—Section 9202 of title 5, 1 United States Code (as added by this Act), shall take 2 effect on the date that is 2 years after the date of en- 3 actment of this Act. 4 (c) TECHNICAL AND CONFORMING AMENDMENT.—The 5 table of chapters for part III of title 5, United States Code, 6 is amended by inserting after the item relating to chapter 7 91 the following: 8 ‘‘92. Prohibition on criminal history inquiries prior to conditional offer ......................................................... 9201’’. (d) APPLICATION TO LEGISLATIVE BRANCH.— 9 (1) IN GENERAL.—The Congressional Account- 10 ability Act of 1995 (2 U.S.C. 1301 et seq.) is amend- 11 ed— 12 (A) in section 102(a) (2 U.S.C. 1302(a)), by 13 adding at the end the following: 14 ‘‘(12) Section 9202 of title 5, United States 15 Code.’’; 16 (B) by redesignating section 207 (2 U.S.C. 17 1317) as section 208; and 18 (C) by inserting after section 206 (2 U.S.C. 19 1316) the following new section: 20 ‘‘SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMI- 21 NAL HISTORY INQUIRIES. 22 ‘‘(a) DEFINITIONS.—In this section, the terms ‘agency’, 23 ‘criminal history record information’, and ‘suspension’ 24 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 1076 RH have the meanings given the terms in section 9201 of title 1 5, United States Code, except as otherwise modified by this 2 section. 3 ‘‘(b) RESTRICTIONS ON CRIMINAL HISTORY INQUIR- 4 IES.— 5 ‘‘(1) IN GENERAL.— 6 ‘‘(A) IN GENERAL.—Except as provided in 7 subparagraph (B), an employee of an employing 8 office may not request that an applicant for em- 9 ployment as a covered employee disclose criminal 10 history record information if the request would 11 be prohibited under section 9202 of title 5, 12 United States Code, if made by an employee of 13 an agency. 14 ‘‘(B) CONDITIONAL OFFER.—For purposes 15 of applying that section 9202 under subpara- 16 graph (A), a reference in that section 9202 to a 17 conditional offer shall be considered to be an 18 offer of employment as a covered employee that 19 is conditioned upon the results of a criminal his- 20 tory inquiry. 21 ‘‘(2) RULES OF CONSTRUCTION.—The provisions 22 of section 9206 of title 5, United States Code, shall 23 apply to employing offices, consistent with regulations 24 issued under subsection (d). 25 VerDate Sep 11 2014 22:37 Jan 24, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H1076.RH H1076 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 1076 RH ‘‘(c) REMEDY.— 1 ‘‘(1) IN GENERAL.—The remedy for a violation 2 of subsection (b)(1) shall be such remedy as would be 3 appropriate if awarded under section 9204 of title 5, 4 United States Code, if the violation had been com- 5 mitted by an employee of an agency, consistent with 6 regulations issued under subsection (d), except that 7 the reference in that section to a suspension shall be 8 considered to be a suspension with the level of com- 9 pensation provided for a covered employee who is tak- 10 ing unpaid leave under section 202. 11 ‘‘(2) PROCESS FOR OBTAINING RELIEF.—An ap- 12 plicant for employment as a covered employee who al- 13 leges a violation of subsection (b)(1) may rely on the 14 provisions of title IV (other [Text truncated for display. 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