New Regulations on Background Checks in the Government Begin

In 2019, the Fair Chance to Compete for Jobs Act was passed and signed into law. Often simply referred to as the “federal fair chance” law, the legislation stipulated that the government should require most agencies to adopt a version of the “ban the box” laws popular across the nation. Several years later, the Office of Personnel Management (OPM) has concluded its rule-writing process and is now ready to implement and enforce the law concerning background checks in government.

In the intervening years, many agencies and department hiring managers adjusted their practices ahead of the new rule. Someone seeking a government job with a background check has, for some time now, likely encountered the further delayed inquiries. However, not everyone has complied yet — and hiring managers across the government should review the new regulations as published by OPM.

What is a government background check like under the changed rules?

Modeled after many state-level Fair Chance laws, the federal act aims to expand employment opportunities by reducing the impact that one’s criminal record may have in the process. With some exceptions, a criminal record is not an automatic barrier to federal employment, but early background checks and disclosures could unfairly tilt the odds in favor of those without a record. The law seeks to level the playing field.

To do so, government agencies will no longer be able to ask about an individual’s background, use a federal government background check, or request completion of the OF-306 form until after making a conditional job offer. In other words, hiring managers must not learn anything about a candidate’s prior criminal records until they otherwise determine they’re suitable for the job role. Only classified positions and federal law enforcement are not subject to the law, but OPM may also grant exemptions based on need.

The pros and cons of this change

Fair chance laws have seen some successes at the state level. Efforts to reduce recidivism are also very important. Although this rule requires extra steps for federal employers, it also ensures you can develop a clearer, more fair candidate assessment. Even those who try to remain unbiased could display unconscious prejudice when they learn about a conviction too early. From this perspective, the law has many potential benefits — including the possibility of hiring better-qualified applicants who might have missed out in the past.

However, the rule does necessitate extra work on compliance. HR teams and hiring managers must undergo retraining to understand their obligations in this area. The law includes a complaint process and action for non-compliance, so preventing potential legal exposure is a key concern. While the law has noble intent, it could create some bottlenecks in the hiring process if agencies don’t appropriately implement the rule. 

Managing the change effectively

With the OPM rule publication, the time for compliance is now. Effective background check partners can support your efforts to adopt compliant processes. Remember, the rule does not prohibit you from taking adverse action when you do use a background check — so a re-ordering of your workflow may be in order. 

OPM has encouraged agencies advertising for government jobs with background check requirements to also publicize that the new fair chance process is in effect. The goal: encourage more people to apply for open positions. Whether these changes to background checks in the government will have the intended effect remains to be seen, but one thing is for certain: now is the time to ensure your department is ready.