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Fair Chance to Compete for Jobs Act

The Fair Chance to Compete Act

The Fair Chance to Compete for Jobs Act prohibits DFAS (and other federal agencies and their contractors) from requesting that an applicant for federal employment disclose criminal history record information before the agency presents a conditional employment offer. Also known as the Fair Chance Act, it was signed into law as part of the 2019 National Defense Authorization Act. The intent is to ensure every applicant receives a fair chance at employment, allowing the qualifications and skills of an individual to be the primary criteria for hiring. It was designed to help qualified workers with arrest or conviction records to compete fairly for employment in federal agencies.

APPLICABILITY

An employee of an agency may not request, in oral or written form that an applicant disclose criminal history record information before the appointing authority extends a conditional offer to the applicant. This includes the following points in the recruitment and hiring process:
  1. Initial application, through a job opportunity announcement on USAJOBS, or through any recruitment/public notification such as on the agency's website/social media, etc.;
  2. After an agency receives an initial application through its back-end system, through shared service providers/recruiters/contractors, or orally or via email and other forms of electronic notification; and
  3. Prior to, during, or after a job interview. This prohibition applies to agency personnel, including when they act through shared service providers, contractors (acting on behalf of the agency) involved in the agency's recruitment and hiring process, or automated systems (specific to the agency or governmentwide).

EXCEPTIONS

Notably, the Act’s prohibition regarding criminal history inquiries before conditional offers of employment does not apply to applicants being appointed to positions that require a determination of eligibility for access to classified information; assignment to or retention in sensitive national security duties or positions; or is a Federal law enforcement officer or dual-status military technician position.

HOW TO FILE A COMPLAINT

DFAS seeks to ensure that every applicant is treated fairly through the hiring process. As required by regulation, DFAS has established procedures under which an applicant may submit a complaint, or any other information, if they believe they have been subjected to a violation of the Fair Chance Act. Applicants who wish to submit a written complaint to DFAS must do so within 30 calendar days of the alleged violation by emailing DFAS.
Frequently Asked Questions
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When may a hiring agency request criminal history information during the hiring process?

Unless otherwise required by law, an agency employee may not request, in oral or written form, that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer of employment to the applicant.
 
 

What positions are exceptions to the prohibitions of the Fair Chance Act?

In accordance with 5 U.S. Code (U.S.C.) § 9202(c) and 5 Code of Federal Regulations (CFR) § 920.201, this prohibition does not apply to applicants being appointed to positions that require a determination of eligibility for access to classified information; assignment to or retention in sensitive national security duties or positions; or is a Federal law enforcement officer or dual-status military technician position.
 
 

What is an adverse action under the Fair Chance Act?

The Fair Chance Act defines adverse actions for employees found to have violated the Act. See 5 U.S.C. 9204 for more information.
 
 

What steps does the agency take after completing the investigation?

The agency provides OPM an administrative report within 30 calendar days of completing the investigation.
 
 

Will applicants be notified of the outcome of a complaint?

No. Neither the Fair Chance Act nor OPM regulations require that an applicant be notified of the outcome of a complaint. As an interested party, an applicant may submit a Freedom of Information Act (FOIA) request to obtain any releasable information about the investigation and outcome.
 
 

How will an applicant’s complaints, or any other information, be investigated?

Within the parameters provided in 5 CFR 754.102(b), DFAS has discretion to determine the appropriate fact-finding methods that efficiently and thoroughly address the matters at issue. In the event the investigator needs additional information from the applicant, the applicant will be given a reasonable amount of time, typically ten calendar days, to respond to any such request for information.
 
 

Can an applicant receive assistance during the complaint process?

Yes. An applicant may select a representative of their choice to assist throughout the complaint process. We may disallow as an applicant's representative an individual whose activities as a representative would cause a conflict of interest or position, when the applicant designates an agency employee who cannot be released from their official duties because of the priority needs of the Government, or when the applicant designates an agency employee whose release would give rise to unreasonable costs to the Government. If we disallow the applicant's chosen representative, we will notify the applicant in writing as soon as practicable.
 
 

What can an applicant expect once a complaints or contact is made to the agency?

DFAS will conduct outreach according to its procedures when an applicant initiates contact related to timing of criminal history inquiries. DFAS will inform the applicant of our procedure for submitting a complaint when DFAS has reasonable cause to believe that an applicant is attempting to file a complaint. OPM's regulations require applicants to file their initial complaint with DFAS. Upon receipt and investigation, DFAS will forward its findings to OPM for action.
 
 

What is the timeframe for an applicant to submit a complaint, or any other information, about an alleged violation of the Fair Chance Act?

An applicant may submit a complaint, or any other information, to the agency within 30 calendar days of the date of the alleged violation.

Link to the Law

Title 5, Chapter I, Subchapter B, Part 920, Subpart B, Timing of Inquires Regarding Criminal History. (Courtesy National Archives)

Fact Sheet

Background

The U.S. Office of Personnel Management (OPM) issued final regulations to implement the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act). The regulations assist agencies in carrying out the provisions of the Fair Chance Act found in chapter 92 of title 5, United States Code. The regulations govern when, during the hiring process, a hiring agency can request information typically collected during a background investigation from an applicant for Federal employment. In addition, the regulations provide a complaint process for applicants who believe they have been subjected to a violation of the Fair Chance Act and hold accountable Federal employees found to have committed such a violation.

Overview

The Fair Chance Act regulations were intended to promote compliance with Merit System Principles, as well as the goal of the Federal Interagency Reentry Council and the Presidential Memorandum of January 31, 2014, “Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own,” otherwise known as “Ban the Box” rules. With some exceptions, the Fair Chance Act prohibit Federal agencies, like DFAS from requesting that an applicant disclose their criminal history record information before a conditional offer of Federal employment is given to that individual. Additionally, the Fair Chance Act requires agencies to establish and maintain a complaint process which allows an applicant to submit a complaint, or any other information, relating to compliance by an employee in reference to the timing of collection of criminal history information.

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