[Senate Report 114-200]
[From the U.S. Government Publishing Office]
114th Congress } { Report
2d Session } SENATE { 114-200
_______________________________________________________________________
Calendar No. 344
FAIR CHANCE ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2021
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
January 12, 2016.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Christopher R. Hixon, Chief Counsel
Patrick J. Bailey, Chief Counsel for Governmental Affairs
Gabrielle D'Adamo Singer, Deputy Chief Counsel for Governmental Affairs
Rebecca E. Nuzzi, Professional Staff Member
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Katherine C. Sybenga, Minority Senior Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 344
114th Congress } { Report
SENATE
2d Session } { 114-200
======================================================================
FAIR CHANCE ACT
_______
January 12, 2016.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2021]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2021) 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, reports favorably thereon with
an amendment and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................7
V. Evaluation of Regulatory Impact..................................8
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported............9
I. Purpose and Summary
S. 2021, the Fair Chance to Compete for Jobs Act of 2015,
or the Fair Chance Act, gives formerly incarcerated individuals
a fair chance to compete for employment in the Federal
government and on Federal contracts by prohibiting Federal
agencies and prime Federal contractors from requesting criminal
history information from job applicants until after they have
issued a conditional offer of employment. By granting
individuals with a criminal history the opportunity to compete
for Federal jobs without first considering their criminal
history, the legislation seeks to improve employment prospects
for these individuals, thereby reducing recidivism.
S. 2021 includes exceptions for certain positions for which
access to criminal history information is required by law, jobs
involving law enforcement and national security duties, in
addition to other commonsense exceptions. The bill also
requires the United States Census Bureau and the Bureau of
Justice Statistics to issue a report on the employment of
formerly incarcerated individuals.
II. Background and the Need for Legislation
Rise in prison population
On August 4, 2015, the Homeland Security and Governmental
Affairs Committee held a hearing titled Oversight of the Bureau
of Prisons: First-Hand Accounts of Challenges Facing the
Federal Prison System.\1\ The hearing outlined a number of
problems facing the Federal prison system and state and local
systems. The United States has the world's largest prison
population, with approximately 200,000 people incarcerated in
Federal facilities, and an additional 2 million people in state
and local facilities.\2\ Between fiscal year (FY) 1980 and
FY2013, the Federal prison population increased 790 percent,
from approximately 24,600 total inmates in 1980, to 219,000
inmates in 2013.\3\ To accommodate the increased inmate
population, the Bureau of Prisons' (BOP) budget has increased
more than twenty-fold, from $330 million in FY1980 to $6.859
billion in FY2014,\4\ and today accounts for roughly one
quarter of the Department of Justice's (DOJ) budget.\5\ The BOP
has more employees than any other entity at DOJ, including the
Federal Bureau of Investigation (FBI).\6\
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\1\Oversight of the Bureau of Prisons: First-Hand Accounts of
Challenges facing the Federal Prison System: Hearing Before the S.
Comm. On Homeland Sec., and Gov't Affairs, 114th Cong. (2015).
\2\Federal Bureau of Prisons, Federal Inmate Statistics, http://
www.bop.gov/about/statistics/ population_statistics.jsp (last visited
Dec. 9 2015).
\3\Nathan James, Cong. Research Serv., R42486, The Bureau of
Prisons (BOP): Operations and Budget (2014).
\4\Id. at 1.
\5\Nathan James, Cong. Research Serv., R42937, The Federal Prison
Population Buildup: Overview, Policy Changes, Issues, and Options
(2014).
\6\Memorandum from U.S. Department of Justice Inspector General
Michael E. Horowitz to Attorney General Eric Holder (Nov. 10, 2014),
available at https://oig.justice.gov/challenges/2014.htm#1.
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Rise in population of formerly incarcerated individuals and recidivism
rates
The rise in inmate population has seen a commensurate rise
in the number of formerly incarcerated people living in
communities across the country. At least 95 percent of inmates
from state prisons will ultimately be released back to their
communities,\7\ with more than 700,000 people getting released
from state and local prisons each year.\8\ Formerly
incarcerated people face a number of obstacles upon reentry
into their communities that impede rather than encourage their
reintegration. Speaking at the August 4, 2015, hearing,
Chairman Ron Johnson stated that he had met with a small group
of formerly incarcerated men and that ``what [he] learned was
that these men want to turn their lives around and stay out of
prison'' but that there are many challenges that people face
leaving the prison system.''\9\ Chief among them are barriers
to employment and, consequently, income and stability.
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\7\Timothy A. Hughes and Doris J. Wilson, Reentry Trends in the
United States, Bureau of Justice Statistics (Apr. 14, 2004), available
at http://www.bjs.gov/content/pub/pdf/reentry.pdf.
\8\Department of Justice, Justice and Education Departments
Announce New Research Showing Prison Education Reduces Recidivism,
Saves Money, Improves Employment, http://www.justice.gov/opa/pr/
justice-and-education-departments-announce-new-research-showing-prison-
education-reduces (last visited Dec. 16, 2015).?
\9\Supra note 1, statement of Senator Ron Johnson, Chairman.
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Studies have shown that as many as two-thirds of people
released from prison between 2005 and 2010 were arrested for a
new crime within three years, and three-quarters were arrested
within five years.\10\ The DOJ estimates that roughly 40
percent of people formerly incarcerated in Federal prisons and
over 60 percent of people formerly incarcerated in state
prisons are re-arrested or have their supervision revoked
within three years.\11\
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\10\Matthew R. Durose, Alexia D. Cooper, PhD., & Howard N. Snyder,
PhD, Bureau of Justice Statistics, NCJ244205, Recidivism of Prisoners
Released in 30 States in 2005: Patterns from 2005 to 2010 (Apr. 2014).
\11\Dan Merica & Evan Perez, Eric Holder seeks to cut mandatory
minimums, CNN (Aug. 12, 2013, 7:03 PM), http://www.cnn.com/2013/08/12/
politics/holder-mandatory-minimums/.
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There are many factors that increase a formerly
incarcerated person's likelihood of being re-incarcerated and
limited employment opportunities are one of the strongest
predictors of recidivism. Multiple studies have shown that
formerly incarcerated people who maintain steady, legitimate
employment are less likely to return to criminal acts upon
release from prison.\12\ Employment has been found to reduce
recidivism by as much as 20 percent among non-violent
offenders.\13\
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\12\Mark T. Berg & Beth M. Huebner, Reentry and the Ties that Bind:
An Examination of Social Ties, Employment, and Recidivism, 28 Justice
Quarterly No. 2 (Apr. 2011), available at http://www.pacific-
gateway.org/reentry,%20employment%20and%20recidivism.pdf.
\13\Aaron Yelowitz & Christopher Bollinger, Prison-to-Work: The
Benefits of Intensive Job-Search Assistance for Former Inmates,
Manhattan Institute Center for State and Local Leadership, Civic Report
No. 96, 28 (Mar. 2015), available at http://www.manhattan-
institute.org/html/prison-work-5876.html.
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Barriers to Employment
An extensive body of research has established that a felony
conviction or time in prison makes individuals significantly
less employable. According to research from the Pew Charitable
Trust, serving time reduces hourly wages for men by
approximately 11 percent, annual employment by 9 weeks, and
annual earnings by 40 percent.\14\ By age 48, the typical
formerly incarcerated person will have earned $179,000 less
than if he had never been incarcerated, not including income
forfeited while incarcerated.\15\ Equally troubling, upon
release from prison, incarceration depresses the total earnings
of white males by 2 percent, of Latino males by 6 percent, and
African American males by 9 percent.\16\
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\14\Pew Center on the States, Collateral Costs: Incarceration's
Effect on Economic Mobility,'' The Pew Charitable Trusts 4, 11 (2010),
available at http://www.pewtrusts.org//media/legacy/uploadedfiles/
pcs_assets/2010/collateralcosts1pdf.
\15\Id. at 4.
\16\Id. at 4, 12.
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Advancements in information technology and the Internet
have given employers unprecedented access to criminal history
record information. Surveys show that an estimated 87 percent
of employers conduct criminal background checks on all job
candidates. Therefore, a person's criminal history can have a
profound impact on their ability to find work, at times even
when there is no logical connection between their criminal
history and the work they apply for.\17\
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\17\Society for Human Resource Management, SHRM Survey Findings:
Background Checking--The Use of Criminal Background Checks in Hiring
Decisions, (July 2012), available at http://www.shrm.org/research/
surveyfindings/articles/pages/criminalbackgroundcheck.aspx.
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Research examining the impact of a criminal record on the
employment process found that in the initial stages of the
hiring process, formerly incarcerated people were only one-half
to one-third as likely as non-offenders to even be considered
by employers.\18\ Additional research shows that a criminal
record reduces the likelihood of a callback or job offer by
nearly 50 percent for men, and that number increases to 60
percent for African American men, specifically.\19\
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\18\Devah Pager, The Mark of a Criminal Record, 108 AM, J. of
Sociology 937, 960 (Mar. 2003), available at http://
scholar.harvard.edu/files/pager/files/pager_ajs.pdf.
\19\Devah Pager, Bruce Western, & Naomi Sugie, Sequencing
Disadvantage: Barriers to Employment Facing Young Black and White Men
with Criminal Records, 623 Annals of The American Academy of Political
and Social Science 195 (May 2009), available at http://
scholar.harvard.edu/files/pager/files/
annals_sequencingdisadvantage.pdf?m=1392390789.
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Implications
The rise in the Federal inmate population has led to an
increasing amount of money being poured into maintaining and
operating the BOP's facilities. Between FY1980 and FY2014, the
BOP's appropriations increased from $330 million to $6.873
billion with an average annual increase of approximately $192
million.\20\ As of FY2015 the BOP's budget has ballooned to
$6.912 billion.\21\
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\20\Supra note 5.
\21\S. Rept. 113-181 at 149 (2014).
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Such increases in appropriations have been necessary to
accommodate the burgeoning prison population. Recent per capita
expenditure data from the BOP, however, indicate that the
overall per capita cost of incarceration for inmates in the
federal system is on the rise, having increased from $21,603
per inmate in FY1980, to $29,291 per inmate in FY2013--an
increase of 35.6 percent.\22\ Because the BOP spends
significant resources simply housing inmates for the duration
of their sentence, they spend fewer resources on vocational
training. At the Committee's August 4, 2015, hearing, the BOP
Director testified that those Federal inmates who participate
in Federal Prison Industries, a vocational training program,
are 24 percent less likely to recidivate than similar non-
participating inmates.\23\ However, the hearing also revealed
that fewer than 5 percent of inmates are able to participate in
the program.\24\ This highlights the need to improve employment
prospects for those who leave the prison system.
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\22\Supra note 5; supra note 3.
\23\Supra note 1, statement of Charles Samuels, Dr., Bureau of
Prisons.
\24\Supra note 1.
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With each inmate costing taxpayers nearly $30,000 annually,
it is essential that those with criminal histories have the
tools available to them upon release to seek stable employment,
and avoid recidivating. Reducing the rate of recidivism by
improving employment opportunities for the formerly
incarcerated has the potential to reduce crime, reduce the
prison population, save taxpayer dollars, and improve lives.
Many studies point to the negative impact a prison record
or felony condition can have on returning citizens' prospects
in the labor market. It is essential to understand the
consequences that impact has on the overall economy.
The American economy pays a price for having such steep
barriers to employment for people with criminal records. A 2010
Center for Economic Policy and Research study on the formerly
incarcerated and the labor market found that in 2008 alone,
employment losses of those with criminal records cost the
economy the equivalent of 1.5 to 1.7 million workers, or $57 to
$65 billion annually.\25\
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\25\John Schmitt & Kris Warner, Schmitt, John, and Kris Warner, Ex-
offenders and the Labor Market, Center for Economic Policy and Research
(Nov. 2010).
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The Fair Chance Act
Barriers to employment increase the likelihood of
recidivism hurt the economy, and damage communities. It is
therefore unsurprising that 19 states, the District of
Columbia, and over 100 cities and counties have adopted some
variation of a policy to ``ban the box'' on job applications to
ensure that people with felony records have a fair shot at
putting their lives back on track.
Consistent with these state efforts, the Fair Chance Act
removes one of those barriers by leveling the playing field for
individuals with a criminal history to find employment in the
Federal government. The bill moves the criminal history inquiry
in most cases from the beginning of the hiring process, when
differential treatment has been found most likely to occur,\26\
to later in the hiring process, when a conditional offer of
employment has been made.
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\26\Supra note 18.
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According to the Office of Personnel Management (OPM),
agencies generally do not currently ask about an applicant's
criminal history at the outset of the hiring process, so the
legislation should not be a significant change in the process
in most cases and its implementation would be relatively
smooth. In addition, unlike some state and local ban-the-box
policies that affect private employers broadly, the Fair Chance
Act is more limited in scope since it only covers hiring in the
Federal government and hiring by prime Federal contractors.
The Fair Chance Act applies to the entire Federal
government, including Congress and the Federal Judiciary. It
also applies to some Federal civilian and defense contractors.
The legislation is narrowly crafted, however, to only apply to
prime contractors and only to those employees doing work for
the Federal government on a Federal contract. While a great
deal of government work is performed by subcontractors, it
would be exceedingly burdensome for large prime contractors to
monitor the hiring practices of every single one of their
subcontractors. Most agencies maintain a goal that one-fourth
to one-third of all subcontracting dollars must flow to small
businesses.\27\ These smaller entities are less likely to have
sophisticated human resources offices and have more basic
hiring practices.\28\
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\27\These goals vary from agency to agency. The General Services
Administration's model plan calls for a goal of 30 percent of all
subcontracting dollars. General Services Administration Acquisition
Manual, Appendix 519A-Small Business Subcontracting Plan Outline
(Model), available at https://www.acquisition.gov/sites/default/files/
current/gsam/html/Part519AppA.html.
\28\Diane Arthur, Managing Human Resources in Small and Mid-Sized
Companies 29 (2nd ed. 2005).
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The legislation also provides commonsense exceptions for
jobs where it would clearly undermine government efficiency,
place at risk our national security, or risk harm to vulnerable
populations if a person with a criminal history held the
position. For agencies hiring for sensitive national security
positions, the bill provides an exception that would allow the
agency to inquire about a criminal history at any stage of the
process. It also provides an exception for positions that would
allow for unsupervised access to children. The Department of
Defense, for example, operates schools and childcare centers on
military bases around the world,\29\ and it is appropriate to
inquire about the criminal history of applicants for positions
at those schools earlier in the hiring process.
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\29\See generally, U.S. Department of Defense Education Activity,
available at http://www.dodea.edu/.
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The legislation also has a broad exception for positions
where an employer is otherwise required by law to inquire about
a criminal history prior to the conditional offer. This
exception is modeled after the Ban the Box executive order
instituted by the Commonwealth of Virginia.\30\ There are a
variety of state, local, and even some Federal laws that
require employers to collect information about criminal
history, such as for teaching positions and positions that have
access to personally identifiable information.
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\30\Exec. Order No. 41 (Commonwealth of Virginia) (2015).
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Finally, rather than attempt to identify every type of
position that should require an exception, the legislation
provides broad authority for OPM, the General Services
Administration, and the Department of Defense to establish
additional exceptions for positions with the Federal
government, on civilian contracts, and on defense contracts.
Even where an exception does not exist, the Federal agency
or contractor is still able under this legislation to decide at
the end of the process that the individual's criminal history
disqualifies them from a particular position. The purpose of
the Fair Chance Act is not to remove access to criminal history
information about an applicant for government employment;
rather, the purpose is to move that information to the end of
the process to give those with a criminal history a fair chance
to compete for the Federal job.
The legislation also does not prohibit employers from
conducting outside research into job candidates, nor does it
prohibit candidates from voluntarily disclosing their criminal
history earlier before the conditional offer stage.
The legislation is silent on the issue of background and
credit checks for employment. Under existing law, any employers
must request consent to conduct a background or credit check on
an applicant for employment. Under the Fair Chance Act, an
agency or contractor may still request that a job candidate
sign a release to allow the Federal employer to conduct these
checks. The legislation does not change the application of
existing law and guidance on the use of information resulting
from a background or credit check.
The legislation simply addresses the timing of a Federal
agency or contractor's inquiry into the criminal history of an
applicant, and prohibits an employer from asking a candidate
either in the application or interview whether they have a
criminal history. The bill creates an administrative process to
deal with Federal employees and contractors who ask an
applicant about their criminal history earlier in the process.
The legislation specifically states that this administrative
process is the only avenue to deal with those who violate its
provisions, and in no way creates a private right of action for
any individual or entity to file any legal action based on a
violation or alleged violation. For Federal employees, the
legislation creates a process by which the employee is warned
about the conduct and, after notice and appeal, may be fined if
the conduct is repetitive. For civilian and defense
contractors, the bill creates a process whereby the contractor
is warned not to repeat the violation. It creates a permissive
process for the contract manager to work with the contractor to
achieve compliance.
This approach balances the need for an enforcement
mechanism with the overall goal of encouraging federal agencies
and government contractors to consider hiring individuals with
a criminal history when they are otherwise qualified for the
position.
III. Legislative History
S. 2021, the Fair Chance Act, was introduced on September
10, 2015, by Senators Cory Booker, Ron Johnson, Tammy Baldwin,
Joni Ernst, and Sherrod Brown. The bill was referred to the
Committee on Homeland Security and Governmental Affairs.
The Committee considered S. 2021 at a business meeting on
October 7, 2015. During the business meeting, one amendment by
Senators Johnson and Booker, in the form of a substitute, was
offered and adopted. Both the amendment and the legislation
were passed by voice vote with Senators Johnson, Portman,
Lankford, Enzi, Ernst, Sasse, Carper, McCaskill, Baldwin,
Heitkamp, and Booker present.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Fair Chance to Compete for Jobs Act of 2015'' or the ``Fair
Chance Act''.
Section 2. Prohibition on criminal history inquiries prior to
conditional offer for Federal employment
This section prohibits inquiries into the criminal history
of an applicant for Federal employment, including the
Legislative Branch, Executive Branch, and the Federal Judiciary
until that applicant has received a conditional offer of
employment. It establishes a process for those who are asked
about their criminal history to report the violation, as well
as adverse actions against Federal employees who violate the
prohibition. It provides for exceptions to the prohibition,
such as applications for sensitive positions, positions that
are prohibited under law from being filled by an individual
with a criminal history, positions with access to minors, and
other such positions as regulated by OPM. It also requires that
such exceptions be consistent with existing civil rights laws.
Section 3. Prohibition on criminal history inquiries by contractors
prior to conditional offer
This section prohibits inquiries into the criminal history
of an applicant for employment for work under a Federal
contract until that applicant has received a conditional offer
of employment. It establishes a process for those who are asked
about their criminal history to report the violation, as well
as adverse actions against contractors that violate the
prohibition.
It provides for exceptions to the prohibition, such as for
sensitive positions, positions that are prohibited under law
from being filled by an individual with a criminal history,
positions with access to minors, and other such positions as
regulated by the General Services Administration and the
Department of Defense. It also requires that such exceptions be
consistent with existing civil rights laws.
Section 4. Report on employment of individuals formerly incarcerated in
Federal prisons
This section requires a joint study and report by the
Bureau of the Census and Bureau of Justice Statistics regarding
the employment of individuals following their release from
Federal prison.
This report must be issued no later than two years after
the date of enactment of the legislation, and every five years
thereafter, and should exclude personally identifiable
information. These reports are to be submitted to the Committee
on Homeland Security and Governmental Affairs of the Senate,
the Committee on Health, Education, Labor, and Pensions of the
Senate, the Committee on Oversight and Government Reform of the
House of Representatives, and the Committee on Education and
the Workforce of the House of Representatives.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
December 7, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2021, the Fair
Chance Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
S. 2021--Fair Chance Act
S. 2021 would amend federal law to prevent federal
employers and contractors from asking about a job applicant's
criminal history until after the applicant has received a
conditional job offer. The bill also would direct the Bureau of
Justice Statistics within the Department of Justice to issue
reports to the Congress on the employment of former federal
prisoners.
There is no general prohibition against hiring ex-
offenders; however, regulations do prevent their employment in
certain positions. Most of the provisions of the bill would
expand on the President's directive to the Office of Management
and Budget (OMB) to modify federal rules and delay inquiries
into the criminal history of potential employees until later in
the hiring process. Based on information from OMB and the
Office of Personnel Management, CBO anticipates that under S.
2021 most agencies would experience a small increase in their
administrative workload to train staff to comply with the new
regulations. CBO estimates that while the additional costs for
any one agency to comply with the provisions of the bill would
be small, in total federal administrative costs would increase
by $2 million over the 2016-2020 period; such spending would be
subject to the availability of appropriated funds.
Enacting S. 2021 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) because they
are authorized to use receipts from the sale of goods, fees,
and other collections to cover their operating costs.
Therefore, pay-as-you-go procedures apply. Because most of
those agencies can make adjustments to the amounts collected as
operating costs change, CBO estimates that any net changes in
direct spending by those agencies would not be significant.
Further, enacting S. 2021 could increase the collection of
civil and criminal fines from federal employees who fail to
follow federal hiring procedures. Those fines are recorded in
the budget as revenues. Criminal fines are available to be
spent without future appropriation action. Therefore, enacting
the legislation could increase federal revenues and associated
direct spending, but CBO estimates that such increases would
not be significant in any year.
CBO estimates that enacting S. 2021 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2026.
S. 2021 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
* * * * * * *
SEC. 1. SHORT TITLE AND TABLE OF CONTENTS
(a) * * *
(b) * * *
TITLE II--EXTENSION OF RIGHTS AND PROTECTIONS
Sec. 201. * * *
* * *
Sec. 207. Rights and protections relating to criminal
history inquiries.
[207] 208. Prohibition of intimidation or reprisal.
* * * * * * *
SEC. 102. APPLICATION OF LAWS
(a) * * *
(1) * * *
* * * * * * *
(12) Section 9202 of title 5, United States Code.
* * * * * * *
SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMINAL HISTORY INQUIRIES
(a) Definitions.--In this section, the terms ``agency'',
``criminal history and record information'', and ``suspension''
have the meanings given the terms in section 9201 of title 5,
United States Code, except as otherwise modified by this
section.
(b) Restrictions on Criminal History Inquiries.--
(1) In general.--
(A) In general.--Except as provided in
subparagraph (B), an employee of an employing
office may not request that an applicant for
employment as a covered employee disclose
criminal history record information if the
request would be prohibited under section 9202
of title 5, United States Code, if made by an
employee of an agency.
(B) Conditional offer.--For purposes of
applying that section 9202 under subparagraph
(A), a reference in that section 9202 to a
conditional offer shall be considered to be an
offer of employment as a covered employee that
is conditioned upon the results of a criminal
history inquiry.
(2) Rules of construction.--The provisions of section
9206 of title 5, United States Code, shall apply to
employing offices, consistent with regulations issued
under subsection (d).
(c) Remedy.--
(1) In general.--The remedy for a violation of
subsection (b)(1) shall be such remedy as would be
appropriate if awarded under section 9204 of title 5,
United States Code, if the violation had been committed
by an employee of an agency, consistent with
regulations issued under subsection (d), except that
the reference in that section to a suspension shall be
considered to be a suspension with the level of
compensation provided for a covered employee who is
taking unpaid leave under section 202.
(2) Process for obtaining relief.--An applicant for
employment as a covered employee who alleges a
violation of subsection (b)(1) may rely on the
provisions of title IV (other than sections 404(2),
407, and 408), consistent with regulations issued under
subsection (d).
(d) Regulations To Implement Section.--
(1) In general.--Not later than 18 months after the
date of enactment of the Fair Chance to Compete for
Jobs Act of 2015, the Board shall, pursuant to section
304, issue regulations to implement this section.
(2) Parallel with agency regulations.--The
regulations issued under paragraph (1) shall be the
same as substantive regulations issued by the director
of the Office of Personnel Management under section
2(b)(1) of the Fair Chance to Compete for Jobs Act of
2015 to implement the statutory provisions referred to
in subsections (a) through (c) except to the extent
that the Board may determine, for good cause shown and
stated together with the regulation, that a
modification of such regulations would be more
effective for the implementation of the rights and
protections under this section.
(e) Effective Date.--Section 102(a)(12) and subsections (a)
through (c) shall take effect on the date on which section 9202
of title 5, United States Code, applies with respect to
agencies.
[SEC. 207.] SEC. 208. PROHIBITION OF INTIMIDATION OR REPRISAL
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart H--Access to Criminal History Record Information
* * * * * * *
CHAPTER 92--PROHIBITION ON CRIMINAL HISTORY INQUIRIES PRIOR TO
CONDITIONAL OFFER
Sec.
9201. Definitions
9202. Limitations on requests for criminal history information.
9203. Agency policies; whistleblower complaint procedures.
9204. Adverse action.
9205. Procedures.
9206. Rules of construction.
SEC. 9201. DEFINITIONS
In this chapter--
(1) the term ``agency'' means ``Executive agency'' as
such term is defined in section 105 and includes--
(A) the United States Postal Service and the
Postal Regulatory Commission; and
(B) the Executive Office of the President;
(2) the term ``appointing authority'' means an
employee in the executive branch of the Government of
the United States that has authority to make
appointments to positions in the civil service;
(3) the term ``conditional offer'' means an offer of
employment in a position in the civil service that is
conditioned upon the results of a criminal history
inquiry;
(4) the term ``criminal history record
information''--
(A) except as provided in subparagraph (B),
has the meaning given the term in section
9101(a);
(B) includes any information described in the
first section of section 9101(a)(2) that has
been sealed or expunged pursuant to law; and
(C) includes information collected by a
criminal justice agency, relating to an act or
alleged act of juvenile delinquency, that is
analogous to criminal history record
information (including such information that
has been sealed or expunged pursuant to law);
and
(5) the term ``suspension'' has the meaning given the
term in section 7501.
SEC. 9202. LIMITATIONS ON REQUESTS FOR CRIMINAL HISTORY RECORD
INFORMATION
(a) Inquiries Prior to Conditional Offer.--Except as
provided in subsections (b) and (c), an employee of an agency
may not request, in oral or written form (including through the
Declaration for Federal Employment (Office of Personnel
Management Optional Form 306), or any similar successor form),
including through the USAJOBS Internet Web site or any other
electronic means, 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 to the applicant.
(b) Otherwise Required by Law.--The prohibition under
subsection (a) shall not apply with respect to an applicant for
a position in the civil service if consideration of criminal
history record information prior to a conditional offer with
respect to the position is otherwise required by law.
(c) Exception for Certain Positions.--
(1) In general.--The prohibition under subsection (a)
shall not apply with respect to an applicant for an
appointment to a position--
(A) that requires a determination of
eligibility described in subparagraph (A), (B),
or (C) of section 9101(b)(1);
(B) as a Federal law enforcement officer (as
defined in section 115(c) of title 18); or
(C) identified by the Director of the Office
of Personnel Management in the regulations
issued under paragraph (2).
(2) Regulations.--
(A) Issuance.--The Director of the Office of
Personnel Management shall issue regulations
identifying additional positions with respect
to which the prohibition under subsection (a)
shall not apply, giving due consideration to
positions that involve interaction with minors,
access to sensitive information, or managing
financial transactions.
(B) Compliance with civil rights laws.--The
regulations issued under subparagraph (A)
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.
SEC. 9203. AGENCY POLICIES; COMPLAINT PROCEDURES
The Director of the Office of Personnel Management shall--
(1) develop, implement, and publish a policy to
assist employees of agencies in complying with section
9202 and the regulations issued pursuant to such
section; and
(2) establish and publish procedures under which an
applicant for an appointment to a position in the civil
service may submit a complaint, or any other
information, relating to compliance by an employee of
an agency with section 9202.
SEC. 9204. ADVERSE ACTION
(a) First Violation.--If the Director of the Office of
Personnel Management determines, after notice and an
opportunity for a hearing on the record, that an employee of an
agency has violated section 9202, the Director shall--
(1) issue to the employee a written warning that
includes a description of the violation and the
additional penalties that may apply for subsequent
violations; and
(2) file such warning in the employee's official
personnel record file.
(b) Subsequent Violations.--If the Director of the Office
of Personnel Management determines, after notice and
opportunity for a hearing on the record, that an employee was
subject to subsection (a) has committed a subsequent violation
of section 9202, the Director may take the following action:
(1) For a second violation, suspension of the
employee for a period of not more than 7 days.
(2) For a third violation, suspension of the employee
for a period of more than 7 days.
(3) For a fourth violation--
(A) suspension of the employee for a period
of more than 7 days; and
(B) a civil penalty against the employee in
an amount that is not more than $250.
(4) For a fifth violation--
(A) suspension of the employee for a period
of more than 7 days; and
(B) a civil penalty against the employee in
an amount that is not more than $500.
(5) For any subsequent violation--
(A) suspension of the employee for a period
of more than seven days; and
(B) a civil penalty against the employee in
an amount that is not more than $1,000.
SEC. 9205. PROCEDURES
(a) Appeals.--The Director of the Office of Personnel
Management shall by rule establish procedures providing for an
appeal from any adverse action taken under section 9204 by not
later than 30 days after the date of the action.
(b) Applicability of Other Laws.--An adverse action taken
under section 9204 (including a determination in an appeal from
such an action under subsection (a) of this section) shall not
be subject to--
(1) the procedures under chapter 75; or
(2) except as provided in subsection (a) of this
section, appeal or judicial review.
SEC. 9206. RULES OF CONSTRUCTION
Nothing in this chapter may be construed to--
(1) authorize any officer or employee of an agency to
request the disclosure of information described under
subparagraphs (B) and (C) of section 9201(4); or
(2) create a private right of action for any person.
TITLE 10--ARMED FORCES
* * * * * * *
Subtitle A--General Military Law
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 137--PROCUREMENT GENERALLY
* * * * * * *
SEC. 2338. 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 2015, 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 Federal contractor may submit to the
Administrator 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.
(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.
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
* * * * * * *
PART III--COURT OFFICERS AND EMPLOYEES
* * * * * * *
CHAPTER 41--ADMINISTRATIVE OFFICE OF UNITED STATES COURTS
* * * * * * *
SEC. 604. DUTIES OF DIRECTOR GENERALLY
(a) * * *
* * * * * * *
(i) Restrictions on Criminal History Inquiries.--
(1) Definitions.--In this subsection--
(A) the terms ``agency'' and ``criminal
history record information'' have the meanings
given those terms in section 9201 of title 5;
(B) the term ``covered employee'' means an
employee of the judicial branch of the United
States Government, other than--
(i) any judge or justice who is
entitled to hold office during good
behavior;
(ii) a United States magistrate
judge; or
(iii) a bankruptcy judge; and
(C) the term ``employing office'' means any
office or entity of the judicial branch of the
United States Government that employs covered
employees.
(2) Restriction.--A covered employee may not request
that an applicant for employment as a covered employee
disclose criminal history record information if the
request would be prohibited under section 9202 of title
5 if made by an employee of an agency.
(3) Employing office policies; complaint procedure.--
The provisions of sections 9203 and 9206 of title 5
shall apply to employing offices and to applicants for
employment as covered employees, consistent with
regulations issued by the Director to implement this
subsection.
(4) Adverse action.--
(A) Adverse action.--The Director may take
such adverse action with respect to a covered
employee who violates paragraph (2) as would be
appropriate under section 9204 of title 5 if
the violation had been committed by an employee
of an agency.
(B) Appeals.--The Director shall by rule
establish procedures providing for an appeal
from any adverse action taken under
subparagraph (A) by not later than 30 days
after the date of the action.
(C) Applicability of other laws.--Except as
provided in subparagraph (B), an adverse action
taken under subparagraph (A) (including a
determination in an appeal from such an action
under subparagraph (B)) shall not be subject to
appeal or judicial review.
(5) Regulations to be issued.--
(A) In general.--Not later than 18 months
after the date of enactment of the Fair Chance
to Compete for Jobs Act of 2015, the Director
shall issue regulations to implement this
subsection.
(B) Parallel with agency regulations.--The
regulations issued under subparagraph (A) shall
be the same as substantive regulations
promulgated by the Director of the Office of
Personnel Management under section 2(b)(1) of
the Fair Chance to Compete for Jobs Act of 2015
except to the extent that the Director of the
Administrative Office of the United States
Courts may determine, for good cause shown and
stated together with the regulation, that a
modification of such regulations would be more
effective for the implementation of the rights
and protections under this subsection.
(6) Effective date.--Paragraphs (1) through (4) shall
take effect on the date on which section 9202 of title
5 applies with respect to agencies.
* * * * * * *
TITLE 41--PUBLIC CONTRACTS
* * * * * * *
Subtitle I--Federal Procurement Policy
* * * * * * *
CHAPTER 47--MISCELLANEOUS
* * * * * * *
SEC. 4713--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), an executive 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 the 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
Administrator of General Services
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 2015, the Administrator of General
Services, in consultation with the
Secretary of Defense, 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 Administrator of the General
Services shall establish and publish procedures under which an
applicant for a position with a Federal contractor may submit
to the Administrator 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 head of an executive
agency determines that a contractor has violated
subsection (a)(1)(B), such head 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 violation.--If the head of an
executive agency determines that a contractor that was
subject to paragraph (1) has committed a subsequent
violation of subsection (a)(1)(B), such head 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.
(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.