As a result of a provision in the National Defense Authorization Act (NDAA) for FY 2020, federal contractors no longer can inquire about an applicant’s criminal history before extending a conditional job offer to work on a government contract. This provision, passed in 2020, took effect on Dec. 2021. The provision is in Sec. 1123 of the NDAA, which amends 41 U.S.C. 4714 and 10 U.S.C. 2338. the provision adds a new section 10 U.S.C. 2339, prohibiting criminal history inquiries by contractors prior to conditional offer. A proposed rule that could assist in compliance is expected to be released soon, according to an open process released in the Federal Acquisition Regulation, indicating guidance will be released on January 5.
According to a Jackson-Lewis summary, the new law
is limited in that it does not apply to job openings unrelated to federal contract work; rather, it applies only to job openings ‘related to work under’ a federal contract. Further, under the Act, pre-offer criminal inquiries are allowed:
- Where criminal background checks are otherwise required by law;
- Where “a contract … requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties”; and
- In connection with other positions to be identified in regulations that will be issued no later than April 2021 (16 months after enactment of the Act).
The Act directs the Office of Personnel Management [OPM] to issue regulations identifying additional positions that are exempted from the law.
[OPM] also must establish a complaint process and progressive penalties, ranging from a written warning for a first violation to payment suspension and contract termination for subsequent violations.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More