Tag: OPM

Fair Chance Act advances in Congress

NOTE:  The Fair Chance Act was signed into law on December 20, 2019, as Public Law 116-92, but its provisions will not take effect for a two-year period after enactment.  The Fair Chance to Compete for Jobs Act of 2019 passed the House on December 11 and the Senate on December 17 with bipartisan support, as part of the National Defense Authorization Act of 2020.  If signed into law, this would be the first piece of federal legislation in over a decade to provide a degree of relief from discrimination based on criminal record. The Fair Chance Act would amend Titles 2, 5 and 28 of the U.S. Code to prohibit employers in all three branches of the federal government, and private-sector federal contractors, from asking about job applicants’ arrest and conviction record until a conditional offer of employment has been extended, an approach that has become known as “ban the box.” “By requiring employers to hold off on asking job applicants about their conviction records until after a conditional job offer has been made, more than 700,000 Americans will gain a fairer chance at finding employment and securing a better future for themselves and their families,” said Maurice Emsellem, fair chance program director with the National Employment Law Project (NELP). The Act’s prohibition on pre-offer inquiries extends to “criminal history information,” which is defined to include records that have been “sealed or expunged pursuant to law,” and sealed records of juvenile adjudications.  See proposed 5 U.S.C. § 9201(4)(B) and (C).  Certain types of employment would be excepted, including employment that otherwise requires inquiry into criminal history, and employment in the military, in law enforcement, and in national security.  The Director of OPM is permitted to designate additional exemptions, including positions that involve “interaction with minors, access to sensitive information, or managing financial transactions.”  See proposed § 9202(B) and (C).  The law contains provisions for enforcement and sanctions. In additional to extending ban-the-box requirements to employment on federal contracts, including defense contracts, it would also prohibit agency procurement officials from asking persons seeking federal contracts and grants about their criminal history, until an “apparent award” has been made.  It is not clear how this law will apply where agency regulations rather than statutes govern consideration of conviction in the award of contracts and grants. Presumably, once a conditional offer of employment has been extended, the Act would permit agencies and contractors to inquire into the applicant’s criminal history under other applicable authority.  For federal executive agencies, general authority to conduct background checks (“for national security and other purposes”) is in 5 U.S.C. §  9101.  This section authorizes inquiry about “arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom,” as well as “records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks.”  5 U.S.C. §9101(a)(2).  Thus, post-offer, it would appear that non-conviction records could continue to be the subject of inquiry by federal hiring and contracting authorities, as well as any records that have been sealed or expunged – but only if they are available to criminal justice agencies for background checks.  (The Fair Chance Act states that it does not authorize post-offer inquiry into the broader set of records “sealed or expunged pursuant to law” or juvenile records that would be specifically barred from pre-offer inquiry under § 9201.  See proposed 5 U.S.C. §  9206.)  In some states, including New York and Texas, sealed or expunged non-conviction records are not available to law enforcement for any purpose without a court order, in others such records are available for law enforcement hiring only, and in still others there are no limits on law enforcement access. Our model law on non-conviction records notes that the states are roughly split on the question of routine law enforcement access to expunged or sealed records, and the question appears to be one on which there are valid arguments to be made for either position. Perhaps, Congress will next take up the question of how agencies and contractors should consider any criminal history that is revealed after inquiry is permitted, including non-conviction records that have been expunged or sealed or convictions that have been pardoned.  In this regard, only a minority of states that have enacted ban-the-box laws also have enforceable hiring standards or fair employment laws that bar discrimination based on criminal record.  However, among the many benefits of ban-the-box laws is the accountability that comes with knowing that employers will now no longer be possible to hide the fact an applicant’s rejection is based on their criminal record.  If adverse decisions must be defended, there should be far fewer of them. Read more

Administration withdraws proposal to require federal job-seekers to disclose diversions

The Washington Post reports that the White House has directed the Office of Personnel Management (OPM) to drop its proposal to expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  OPM’s proposal, which we described in March, would have required applicants for federal jobs and contracting work to disclose participation in pretrial diversion programs in the last 7 years. In March, we launched our non-conviction records project, a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.  The appearance of these records in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Our letter opposing the OPM proposal cited our research on diversions and pointed out that while “state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.” We are pleased to see the administration quash this ill-advised proposal, in the face of opposition from advocates on the left and right, lawmakers from both parties, and prosecutors and public defenders.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, the federal government should be moving to reduce the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion). While every state legislature has in some way addressed the problem of reintegration since 2012, Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.  Now is the time for federal action in support of reintegration, as the withdrawal of the OPM proposal evidently recognizes. Read more

CCRC opposes rule requiring federal job seekers to disclose some non-conviction records

In March, we described a proposed federal rule that would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  Specifically, OPM proposes for the first time to require individuals applying for federal employment or contracts to disclose whether they have participated in pretrial diversion programs in the last 7 years.  Our letter commenting on OPM’s proposal (reprinted below) points out that diversion is increasingly favored by states as a means of encouraging rehabilitation, and that this goal is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.  In treating diversions like convictions, the OPM proposal would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including allowing for positive community perceptions of the justice system. **Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.  The letter cites research from the Restoration of Rights Project to show that diversion or deferred adjudication, or both, are authorized by statute in all but one state.  All but eight states provide for record-closing and restoration of rights after successful completion of these dispositions, and an increasing number of jurisdictions now prohibit their consideration by employers and licensing boards.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion. Finally, the letter argues that OPM’s proposal is ambiguous about whether prosecutor-directed diversion or sealed diversions must be disclosed.  Uncertainty about what diversion records must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Our public comment, urging the federal government to withdraw its proposed requirement, is reprinted in full below.  We have also added our name to a comment filed by a large number of organizations concerned with improving opportunities for people with a criminal record. Public comments may be submitted by April 23, 2019 directly at this link or through Generation Progress’ comment tool. April 18, 2019 National Bureau of Background Investigations U.S. Office of Personnel Management 1900 E Street, N.W. Washington, D.C. 20415 Attn:  Donna McLeod Re:  Comments to OPM’s Declaration for Federal Employment Form (OF306) Dear Ms. McLeod, Our organization, the Collateral Consequences Resource Center, promotes public engagement on issues raised by the collateral consequences of arrest or conviction.  We document and analyze law reform efforts aimed at facilitating reintegration for people with a criminal record. We are writing in response to the Office of Personnel Management’s (OPM) request for comments on its proposed revision of the Declaration for Federal Employment, Optional Form (OF) 306, the form for applicants for federal employment and contract work.  See 84 Fed. Reg. 5733 (February 22, 2019).  Specifically, we would like to offer comments on the proposed requirement that applicants disclose whether they have participated in “a pretrial intervention or diversionary program or the like” in the last 7 years.  For ease of discussion, we will refer to these dispositions as “pretrial diversion.” For the following reasons, we encourage OPM to withdraw the proposed requirement for disclosure of diversions. Diversion is Increasingly Favored by States as a Means of Encouraging Rehabilitation Pretrial diversion refers to a procedure or procedures in which a prosecutor or court agree with a person accused of a crime to resolve criminal charges without a conviction, if the person complies with certain conditions.[1]  Thus broadly defined, pretrial diversion is authorized by statute in 49 states and the District of Columbia.[2]  It can also be authorized by prosecutorial consent (as in most situations in the federal system[3]) or by a court rule.  It may or may not require a person to plead guilty as a condition of participation. The trend in the states in the past decade has been to expand the availability of these non-conviction dispositions,[4] “to rehabilitate individuals who have committed crimes, to make reparation to crime victims, and to advance public safety.”[5]  Their rehabilitative purpose is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction. There are two primary types of diversions.  In a pure diversion, a prosecutor offers and a person agrees to be placed in a community-based diversion program and comply with certain conditions.  In a deferred adjudication—available in all but 13 states in at least some cases—a person who has been charged typically agrees to plead guilty, and the court agrees to place the person on probation and not enter a conviction.[6]  After successful completion of a diversion program, the charges are dismissed and the case is terminated. In most states, the person will become eligible to have the arrest and court records closed to the public via expungement, sealing, or some similar procedure.[7] The American Law Institute, the leading national law reform organization, advocates for diversionary dispositions in its 2017 Model Penal Code: Sentencing (deferred prosecution and deferred adjudication), with roots dating back to the 1960s and 1970s.[8]  The American Bar Association, National District Attorneys Association, and major national defender organizations have joined together to urge jurisdictions to support and fund prosecutors and others seeking to develop “deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record” for a people deemed appropriate for a community supervision sentence.[9] OPM’s Proposal Treats Diversions like Convictions While state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions. Specifically, the proposal would amend the federal employment and contracting form, OF 306, to require an applicant to disclose not only whether the applicant has current pending charges, or whether, during the last 7 years, the applicant has been convicted of a crime, served time in jail or prison, or been on probation or parole, but also—for the first time—whether the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  See 84 Fed. Reg. 5733 (February 22, 2019).  Disclosure, and the likely resulting discrimination, would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including “allowing for positive community perceptions of the justice system.”[10] At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).[11] OPM’s Proposal is Ambiguous About What Must be Disclosed The language of the OPM proposal does not make clear exactly what must be disclosed. First, the proposal does not make clear whether prosecutor-directed diversions are covered.  While the language of OPM’s notice says “OPM is proposing to add a requirement to admit charges for which one has been placed into a pretrial intervention or diversionary program or the like,” the question itself says disclosure is required if the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  Are a prosecutor’s diversion conditions “court specified”? Second, the proposal does not make clear if diversions must be reported if the record has been sealed under state law.  While the OF 306 states that a person may omit “any conviction for which the record was expunged under Federal or state law,” the proposal does not amend that section or otherwise make clear whether a person whose diversion was expunged must nonetheless disclose it.  Whether or not it is intentional, the failure to authorize applicants to omit expunged diversions perversely results in harsher treatment of diversions than convictions.  Moreover, the term “expunge” does not have a commonly accepted definition, and many states use other terms such as seal, erase, annul, or set-aside to describe record-closing relief.[12]  States also give differing effect to these terms, ranging from a limited sealing to full destruction of the record.[13]  Assuming expunged diversions may be omitted on the same basis as expunged convictions, may these dispositions also be omitted?[14] This lack of clarity has real consequences.  A false statement on the OF 306 can be grounds for rejection, termination, or criminal prosecution for false statements under 18 U.S.C. § 1001.  Therefore, uncertainty about whether or not prosecutor-directed or sealed diversions must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Moreover, such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge. Because the proposed requirement for disclosure of diversions is ill-advised as a matter of policy and legally problematic, we respectfully encourage OPM to withdraw it.  At the very least, OPM should amend the language to clarify whether prosecutor-directed diversions and records that have been sealed must be disclosed. Thank you for your consideration. Sincerely, Margaret Colgate Love Executive Director Collateral Consequences Resource Center [1] See Pretrial Diversion from the Criminal Justice Process, 83 Yale L.J. 827 (1974). [2] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13.  The one state that apparently lacks diversion by statute, North Dakota, provides for diversion by court rule.  See N.D. R. Crim. P. 32.2. [3] See United States Attorneys Manual, § 9-22.000 et seq.; 18 U.S.C. § 3607(a). [4] See Margaret Colgate Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6, 7 (2009) (finding that deferred adjudication schemes “are statutorily authorized in over half the states”). [5] See Model Penal Code: Sentencing §§ 6.03, cmt. (2017). [6] See Margaret Love, Joshua Gaines & Jenny Osborne, Forgiving & Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights, Collateral Consequences Resource Center, at 13-14 (August 2018), available at https://ccresourcecenter.org/tag/forgiving-and-forgetting/. [7] Our research indicates that 42 states allow record-closing for diversion, including deferred adjudication where available, either explicitly or by allowing record-closing for dismissals without excluding diversion or deferred adjudication (some states have additional eligibility requirements such as waiting periods and ineligible offenses).  See Restoration of Rights Project, Collateral Consequences Resource Center, Chart 4 (“Judicial Expungement, Sealing, and Set-aside”), available at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/; State Profiles, available at http://restoration.ccresourcecenter.org/.  Eight states do not provide for record-closing and restoration of rights after successful completion of diversion and/or deferred adjudication.  Id.  Even federal law provides for expungement of diversions, though on an admittedly fairly limited basis.  See 18 U.S.C. § 3607(a) and (c) (deferred adjudication for first misdemeanor drug possession, and expungement if the defendant was under age 21 at the time of the offense). [8] See Model Penal Code: Sentencing §§ 6.03, 6.04 (2017); Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at 7 (‘‘In the 1970s, many states adopted deferred adjudication laws that were evidently inspired by the Corrections Articles of the Model Penal Code.”). [9] ABA 2007 Report with Recommendation #103A (Commission on Effective Criminal Sanctions, co-sponsored by the National District Attorneys Association, National Association of Criminal Defense Attorneys, National Legal Aid and Defenders Association). [10] See Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).  While it is true that a number of states allow closed records to be reviewed for law enforcement employment and other sensitive positions, federal law already accounts for this concern through more rigorous background investigations and disclosure forms for sensitive, national security, and public trust positions. [11] Ind. Code § 25-1-1.1-6(d); Wis. Stat. § 111.335(4) (certain offenses exempted); Cal. Gov’t Code § 12952; Nev. Rev. Stat. Ann. § 284.281(4) (covering public employment, with exceptions). [12] See Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at n.4; Love et. al, Forgiving & Forgetting in American Justice, supra note 6, at 25 n. 4. [13] See Restoration of Rights Project, Chart 4, supra note 7. [14] This ambiguity extends to convictions as well, a further problem with the OPM policy that we note but will not at this point address further.  It is a problem in federal law that is not confined to the OPM policy. Read more

Federal agencies urged to adopt fair hiring policies

The National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded. The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise). The paper urges presidential action to implement the recommended reforms through an Executive Order on federal contracting, and a Presidential Memorandum directed to federal agencies.  It notes some legislation pending in Congress that would improve opportunities for people with a record, including the REDEEM Act co-sponsored by Senators Rand Paul and Cory Booker.  But changes in the law are not necessary to implement the report’s recommendations affecting federal employment practices. A Fair Hiring Platform NELP proposes an ambitious fair hiring platform that, if implemented by federal employers and contractors, would instantly transform the national landscape.  The Executive Order the report recommends would require federal contractors to take the following steps to increase opportunities for people with a criminal record: •  Remove the criminal history question from job applications and postpone the background check until a conditional offer of employment is made (i.e., “ban the box”), except where the specific position requires a national security clearance; •  Consider only “job related” convictions and take into consideration the age of the offense, the nature of the offense, and countervailing evidence of rehabilitation, as required by the EEOC; •  Refrain from asking about an individual’s arrest record, expunged offenses, dismissals, or juvenile offenses; •  Provide a written notice to the individual when an unfavorable determination is made, explaining the reason for the decision (including the disqualifying offense); • Provide strong notice and appeal rights for workers to challenge unfavorable determinations; and • Strictly comply with the background check requirements of the Fair Credit Reporting Act. In addition, federal agencies should be made subject to stricter regulation where their own hiring policies are concerned.  Specifically, a Presidential Memorandum should direct federal agencies “to correct the prejudicial aspects of the hiring standards and procedures regulating criminal background checks of applicants for federal employment,” and “embrace the role of a model employer.”  The report suggests that the appeal and waiver procedural protections mandated by the Maritime Transportation Security Act’s port-worker background check program, whose adoption NELP was instrumental in securing in the months after 9/11 and whose administration by the Transportation Security Administration NELP has monitored ever since, could be a model for federal agencies’ own employment policies and practices.  Specifically, the Presidential Memorandum should include the following key components: • The Office of Personnel Management (OPM) should revise the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964. Instead of the discretion now allowed to consider the age of the offense, evidence of rehabilitation, and other mitigating factors, the agencies should be required to do so; • To promote greater transparency and accountability, all federal agencies should report their suitability criteria to OPM and verify their compliance with the EEOC guidelines. Agencies should also report the appeal procedures that apply to each of the distinct categories of workers, including federal contract workers. Based on the information collected, OPM should issue a report to the president evaluating the findings and making recommendations for federal agency reform; • OPM should eliminate the criminal history question from the “Declaration for Federal Employment” form, and federal agencies should strictly follow the OPM standard policy that they postpone the background check until the end of the hiring process; • All federal agencies should be directed to evaluate the “collateral consequences” of federally mandated criminal background checks for employment; • Federal agencies should adopt the appeal and waiver procedures modeled on the Maritime Transportation Security Act’s port-worker background check program to all federal agency licensing and employment certification mandates; • The FBI should be directed to comply with existing regulations that preclude the reporting of non-serious offenses and to take additional steps to clean up the FBI background checks for employment, which severely prejudice the employment prospects of people of color; • The Consumer Financial Protection Bureau should publish regulations addressing the numerous routine violations of the Fair Credit Reporting Act by the background screening industry and employers, including the erroneous reporting of expunged and sealed cases; • Federal agencies should prepare options to require “targeted hiring” of people with criminal records on federally-funded projects and provide additional funding for “transitional jobs” that serve the needs of people who have been recently released from incarceration; • Federal agencies should actively promote and enforce the new federal civil rights guidances that strictly regulate the use of criminal history information by private – and public – sector employers and federally funded workforce programs. The bold reform agenda recommended by the NELP report seems a lot to expect of this Administration in its waning months.  However, we note that one person who has indicated an interest in assuming the presidency in 2017 already has a track record of implementing such a program, albeit on a somewhat smaller scale. In 2006 Governor Jeb Bush issued Executive Order No. 06-89, based on the report of a task force he had established, which directed each agency in the State of Florida 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) to report to him the reasons for any automatic disqualifications and any available procedures for waiver; 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  Governor Bush asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  He also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.” Might federal fair hiring become an issue in the coming presidential campaign? 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