Federal contractors have become the most recent employers affected by the growing trend toward “ban-the-box” type laws. As of December 2021, federal employers, including federal contractors, are forbidden in most cases from considering an applicant’s criminal history before making a conditional job offer. This law, dubbed the Fair Chance to Compete for Jobs Act, is part of the National Defense Authorization Act for Fiscal Year 2020.

This policy now brings federal employers in line with the 37 states across the country which have applied similar requirements for private employers. Under the Fair Chance to Compete for Jobs Act, federal agencies and contractors are prohibited from requiring applicants to disclose any criminal history record information before extending a conditional offer of employment. The definition for what amounts to criminal history record information is quite broad and includes all information collected by criminal justice agencies, such as arrests, indictments, and criminal charges.

There are certain exemptions to these requirements, however. This includes positions related to law enforcement and national security, positions with access to classified information, and positions required by law to perform a criminal record check of applicants before making a conditional offer.

Like other ban-the-box laws, which are named for their removal of the check-box on applications that ask applicants if they have a criminal history, it is intended to allow applicants to get their foot in the door before criminal history is considered. As a result, these laws can undoubtedly have an impact on allowing individuals who may not have otherwise been considered for certain positions. However, recent research has shown that these laws may have unexpected side effects.

Researchers at the University of Virginia have found that ban-the-box policies have had a negative impact on younger black males without college degrees, reducing employment by 5%. As a result, some have called for the procedure to be repealed. According to these researchers, once employers are blocked from considering criminal history for these populations, they are more likely to assume they have criminal records from the outset. As a result, they will never proceed with interviews or conditional offers in the first place. Therefore, they suggest instead creating policies that provide greater information regarding applicants that possess criminal records or approaches that improve the job-readiness of offenders. This could enhance the ability of those with criminal records to find employment without negatively impacting the populations these policies are most intended to help.

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