Category: Types of Consequences

Will restrictions on banking jobs be relaxed for people with a record?

More than two dozen organizations dedicated to improving employment opportunities for people with a criminal record have written to the FDIC urging that it give regulated financial institutions greater latitude to hire qualified people without having to ask the FDIC’s permission.  The occasion is the FDIC’s proposal to reduce to a formal rule its longstanding policy on employment of convicted individuals by banks, a proposal that suggests the FDIC may be open to giving banks more hiring autonomy by relaxing several controversial provisions.  For 20 years, the FDIC has kept a tight grip on banks, requiring them to obtain a waiver before they may hire anyone with a record even in an entry-level non-professional position.  In operation, this policy has been an effective bar to bank employment for most people with a conviction record (and even for some who have never been convicted).

The letter, organized by the National Employment Law Project and the Leadership Conference on Civil and Human Rights, points out that FDIC’s exclusionary policy is not required by its enabling statute, and urges the agency to bring its policy on hiring waivers into line with national efforts to further reintegration, in several different ways, some of which are discussed below.  The letter cites the bipartisan federal Fair Chance Act and corresponding reforms in states across the country (as reported by CCRC), as well as many letters from bank industry leaders urging the FDIC to relax its rigid policy that has frustrated efforts to diversify the financial sector’s work force.

The comment below provides some background for the FDIC’s proposal, and comments on where some relaxation of its present policy is likely.  It concludes with a note about the generally confusing and inconsistent treatment of state relief mechanisms like expungement and pardon in federal laws and regulations, suggesting that this is an area sorely in need of further study and proposals for reform.

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New Jersey steps out as Reintegration Champion of 2019

Editors’ note: CCRC recently released its report on 2019 criminal record reforms, which recognized New Jersey as the “Reintegration Champion” of 2019, for having the most consequential legislative record of any state in the past year.  The following comment describes New Jersey’s laws enacted in 2019.  New Jersey’s various restoration of rights laws are further described in the state’s profile in the CCRC Restoration of Rights Project.

In December 2019, Governor Phil Murphy signed into law S4154, now L.2019, c.269, as part of his Second Chance Agenda.  The law is a strong step towards criminal justice reform, and places New Jersey on the map as a leader in expungement policy.  Along with easing access to the existing expungement process,  it creates a new “clean slate” system that provides for expungement of all but the most serious violent offenses after ten years. It additionally sets in motion a process aiming to automate all clean slate expungements.  The substantive provisions of the law are set to go into effect on June 15, 2020, and we anticipate a large increase in expungements following its implementation.

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Report Card: Grading states on 2019 record reforms

The following is an excerpt from our recent annual report on legislative reforms, Pathways to Reintegration: Criminal Record Reforms in 2019.

Report Card

For the first time this year we have prepared a “Report Card” on how state legislatures performed in 2019 in advancing the goals of reintegration.  We have not covered all states, only those we thought most and least productive.  We hope this new feature of our annual reports will provide an incentive to legislatures across the nation, and a tool for legislative advocates.

New Jersey gets the top mark as Reintegration Champion of 2019 for the most consequential legislative record of any state last year.

In this inaugural year, New Jersey gets the top mark as Reintegration Champion of 2019 for the most consequential legislative record of any state last year.  New Jersey’s “Clean Slate” law authorized an automated record-clearing process for many thousands of misdemeanor and felony convictions going back decades, and extended eligibility and improved procedures for petition-based discretionary expungement  relief.  New Jersey enacted two other important laws promoting reintegration.  One limited felony disenfranchisement to people in prison, immediately restoring the vote to about 80,000 people still completing their sentences in the community.  Unlike the executive orders that have this effect in New York and Kentucky, New Jersey’s law will not be easily retracted when the statehouse changes hands.  Another new law repealed provisions mandating suspension of driver’s licenses for conviction of drug and other non-driving crimes, for failure to pay court debt, and for failure to pay child support.

In commending New Jersey’s legislative accomplishments, we would be remiss not to recognize the key role played by Governor Phil Murphy in making criminal record reform the cornerstone of his legislative agenda, and by key legislative leaders, who together persuaded the legislature to enact in a single year a bolder set of reintegration laws than any other in the country to the present time.[i]

As runner-up, Colorado enacted 10 laws on criminal records, voting rights, ban-the-box, and immigration.

Colorado is runner up for our new Reintegration Champion award, based on a prolific legislative record that is a close second to New Jersey’s.  In 2019 Colorado enacted ten record reform laws, among them an ambitious rewriting of its code chapter on criminal records, a law restoring voting rights to parolees and one extending ban-the-box to private employers, and two new measures to avoid deportation as a consequence of conviction. Colorado’s productive 2019 followed an almost equally productive 2018, when its legislature regulated occupational licensing agencies and gave its courts authority to remove mandatory collateral penalties.

Honorable mention goes to 6 states (IL, MS, NV, NM, ND, WV) for productive legislative seasons, while 5 other states (AR, DE, CA, NY, UT) were recognized for a specific notable new law.    

Honorable mention for a productive legislative season goes to six states: Illinois and Nevada (with nine and eight laws, respectively, some significant); New Mexico and North Dakota (for their comprehensive first-ever record-sealing schemes, and ban-the-box bills);  Mississippi (for its extensive regulation of occupational licensing, management of diversion courts, and repeal of mandatory driver’s license penalties for drug and other non-driving crimes); and West Virginia (for two significant laws, on record relief and occupational licensing, as well as a diversion bill).  Five additional states deserve recognition for notable enactments:  Arkansas for a major revision of its occupational licensing law; California and Utah for their automated record relief laws (though Utah’s scheme is not as far-reaching as New Jersey’s, and California’s is prospective only); New York for two measures to limit access to undisposed (pending) cases; and Delaware for its first comprehensive expungement scheme.

Low marks go to three of the seven states that enacted no record reform laws at all in 2019: the legislatures of Alaska, Georgia, and Michigan have been the least productive in the land in recent years where restoration of rights and status is concerned.  Kansas, Massachusetts, Wisconsin, and Pennsylvania also produced no new laws in 2019, but all four states enacted major record reforms in 2018 so we give them a pass.

We conclude by noting that many of the states not mentioned in this inaugural Report Card made progress last year in limiting access to and use of criminal records, and we were hard-pressed not to single a few more of them out for credit.  It is clear to us that almost every state sees criminal record reform as an important and challenging legislative agenda.  We anticipate that in 2020 states that have been comparatively cautious in their recent law-making will be inspired to take larger steps as they see what more ambitious jurisdictions have already been able to accomplish.

Note: In response to this report, New Jersey Governor Phil Murphy tweeted:

Read the full report here.

[i] See, e.g., Governor Murphy’s statement accompanying his “conditional veto” in August 2019 of an early version of the bill that would become the Clean Slate law that he signed on December 19, 2019.  In that statement, after applauding the legislature’s extension of eligibility for petition-based expungement, he noted the example set by Pennsylvania’s own Clean Slate law the year before:

“Only those individuals who actually apply for an expungement, meaning those who are aware of this potential remedy and have the wherewithal to navigate the legal process or afford an attorney to assist them, would be able to seek the relief afforded by the expungement process. This method is not the most efficient means for clean slate expungement, nor will it deliver relief to all eligible individuals who need it. To avoid this shortcoming, we should follow the lead of Pennsylvania and undertake the necessary steps to establish an automated, computerized expungement system that would allow people with multiple convictions for less serious, non-violent crimes who maintain a clean record for ten years to clear their criminal histories without having to hire a lawyer or wade through a paperwork-intensive process. Our system is not set up to do this now, and undertaking this task will require buy-in and commitment from all three branches of government. On behalf of the executive branch, that is a commitment I am more than willing to make.”

See https://www.state.nj.us/governor/news/news/562019/docs/S3205CV.pdf.  Senator Sandra Cunningham, Senate President Sweeney and Speaker Coughlin were particularly effective partners in the negotiations that resulted in the bill that was approved by the legislature in December.

11th Circuit upholds voting rights for Floridians unable to pay fines and fees

*Update (3/31/20): the Eleventh Circuit has denied Florida’s petition for rehearing en banc.

A decision yesterday from the U.S. Court of Appeals for the Eleventh Circuit is a major victory for voting rights and criminal justice reform advocates.  It has the potential to dramatically expand access to the ballot for people with felony convictions in Florida.  The decision concerns Florida’s 2018 ballot initiative Amendment 4, which restored the vote to state residents who have completed the terms of their sentence, which includes fines, fees, and restitution imposed by the court.  The appeals court’s decision held that Florida may not deny the vote to individuals who can demonstrate that they are genuinely unable to pay outstanding court debt.  The decision also called into question the very requirement that financial penalties must be satisfied in order to regain the vote under Amendment 4, and potentially similar requirements in several other states.

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CCRC reports on criminal record reforms in 2019

We are pleased to publish our annual report on criminal record reforms enacted during the past calendar year.  This is the fourth in a series of reports since 2016 on new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction.  This year we have included for the first time a Report Card grading the progress of the most (and least) productive state legislatures in 2019.  The press release accompanying the report is reprinted below:

Report finds record-breaking number of criminal record reforms enacted in 2019

February 17, 2020

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the astonishing number of laws passed in 2019 aimed at promoting reintegration for individuals with a criminal record.  Last year, 43 states, the District of Columbia, and the federal government enacted an extraordinary 153 laws to provide criminal record relief or to alleviate the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime and frequently have little or no public safety rationale. 

The year 2019 was the most productive legislative year since a wave of “fair chance” reforms began in 2013, a period CCRC has documented in a series of legislative reports (2013-2016, 2017, and 2018). 

CCRC’s 2019 report, titled “Pathways to Reintegration: Criminal Record Reforms in 2019,” is available here.

“This report is our first to include a Report Card on how state legislatures performed during the year in advancing the goals of reintegration,” said CCRC Executive Director Margaret Love. “We wanted to recognize New Jersey as Reintegration Champion for having the most consequential legislative record in 2019, including three important new laws authorizing ‘clean slate’ record relief, restoring voting rights, and curbing driver’s license suspensions.”

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New 2019 laws on immigration consequences and driver’s license suspension

This is the fifth and final comment on new 2019 laws restoring rights or delivering record relief.  The laws included cover immigration consequences, driver’s licenses, pardon procedures, and several miscellaneous topics.  The full report on 2019 laws is available here.

Immigration consequences

In 2019, four states took steps enabling non-citizens charged with offenses to avoid deportation based on sentence or guilty plea.  Colorado, New York, and Utah capped prison sentences for misdemeanors at 364 days, to avoid mandatory deportation based on a one-year prison sentence, with the first two states giving the law retroactive effect.  New York also restricted the dissemination of certain criminal record information to federal immigration authorities.  Oregon revised its law on deferred judgments to prohibit guilty pleas that would trigger deportability.  Oregon also, along with Nevada, regulated the questioning of criminal defendants or detained individuals about their immigration status.

  • Colorado passed three laws aimed at mitigating the immigration consequences of conviction.   The first two relate to mandatory deportation for state misdemeanors carrying a potential one-year sentence.  See 8 U.S.C. § 1227(a)(2).  To avoid this consequence, Colorado reduced the maximum jail sentence for various offenses from one year to 364 days. (HB 1148; HB 1263).  Colorado also authorized individuals to withdraw guilty pleas where they had pled guilty pursuant to a deferred adjudication or drug offense dismissal scheme, and thereby unknowingly exposed themselves to immigration consequences (federal immigration law treats such pleas as convictions, even though state law may not, see 8 U.S.C. §§ 1101(a)(48)(A), 1227(a)(2)) (S 30).
  • New York not only capped misdemeanor penalties at 364 days, but it gave the provision retroactive effect by authorizing resentencing in cases where the penalty originally imposed would result in “severe collateral consequences.”  (S 1505).  In addition, New York barred access by federal immigration authorities to some motor vehicle records, which may include criminal record information (A3675).
  • Utah reduced the maximum prison term for misdemeanors to “one year with a credit for one day,” but made no provision for retroactive application (HB 244).
  • Oregon removed a guilty plea requirement from the controlled substances diversion statute, making this benefit available to non-citizens without exposing them to deportation (HB 3201).  The law specifically provides that “[e]ntering into a probation agreement does not constitute an admission of guilt” and is “not sufficient to warrant a finding or adjudication of guilt by a court.”  As noted in the diversion section, however, the bill added a provision requiring defendants to agree to pay restitution to victims and court-appointed counsel fees as a condition of participation, with no provision for waiver.  Another new Oregon law prohibits a criminal court from inquiring about a defendant’s immigration status, and requires the court to allow a defendant additional time to consider a plea after being informed of immigration consequences (HB 2932).  Last year Oregon limited sentences for minor crimes to 364 days to avoid deportation (much as Colorado, New York and Utah did this year).
  • Nevada passed a law prohibiting anyone from questioning a person in a jail or other detention facility about their immigration status, unless they first informed the detainee of the purpose of the questioning (AB 376).

In addition, Indiana reduced selected misdemeanors to non-criminal civil infractions, taking them out ac riminal category, and avoiding immigration consequences (SB 336).

Driver’s License Suspension 

Six states repealed laws mandating suspension of a driver’s license for non-driving offenses.

  • Mississippi (HB 1352) and New York (S 1505) repealed provisions making loss of a driver’s license a mandatory penalty for a drug crime.
  • Montana (HB 217) and Virginia (HB 1700) repealed laws mandating suspension of a driver’s license for failure to pay court costs.
  • New Jersey addressed both of these issues, repealing provisions mandating suspension of driver’s licenses for conviction of drug and other crimes, and for failure to pay court debt (S1080).
  • Florida modified or deleted provisions for driver’s license suspension or revocation for underage tobacco and alcohol sales or consumption, misdemeanor theft, and drug crimes (HB 7125).Fla. Stat. §§ 569.11, 877.112, 562.11, 562.111, 812.0155, 322.055, 322.056.

In addition, Minnesota authorized cities and counties to create a driver’s license reinstatement diversion program (SF 8).

Housing discrimination

Illinois extended two laws, including its Human Rights Law, to bar private parties’ reliance on certain criminal records to deny housing.  Previously both laws applied only to employment.

  • Illinois barred housing discrimination through an amendment to its Human Rights Law to prohibit discrimination based on “arrest record” in any “real estate transaction,” including both rental and sale of real property. The term “arrest record” was defined to include non-conviction records, juvenile adjudications, and sealed or expunged convictions.  (SB1780).  (This same enactment also extended the Law’s employment discrimination provisions to non-conviction records, since the other categories of records were already covered.)
  • Illinois also extended the effect of its certificate of good conduct to lift mandatory licensing and housing bars, in additional to employment bars. (SB 3580).  However, a certificate of good conduct does not limit any employer, landlord, judicial proceeding, administrative, licensing, or other body, board, or authority from accessing criminal background information; nor does it hide, alter, or expunge the record.  Nor does the existence of a certificate of good conduct does not preclude a landlord or an administrative, licensing, or other body, board, or authority from retaining full discretion to grant or deny the application for housing or licensure.

Pardon procedure 

Nevada and South Dakota took steps to further streamline their already productive pardon systems.

  • The Nevada legislature proposes to repeal a requirement in the state constitution that the governor must approve all clemency grants by the Board of Pardons Commissioners, on which the governor sits as a member (SJR 1A). This proposal, which also requires the Board to meet at least quarterly, must be approved by popular vote in 2020.
  • The South Dakota legislature authorized a hearing panel of the Board of Pardons to make clemency recommendations to the governor, rather than the entire Board as under preexisting law. (HB1005).

Miscellaneous relief provisions

Among the more notable miscellaneous collateral consequences provisions enacted in 2019 is Utah’s new law giving courts new authority to terminate sex offender registration obligations, and loosening restrictions on driver’s licenses for people on the registry.  Another interesting new law is Connecticut’s establishment of a high-level study group to make recommendations on reducing various forms of discrimination based on criminal history.

  • Utah loosened restrictions on registered sex offenders, including rescinding a requirement that they renew driver’s licenses annually, expanding the number of offenses that qualify for removal from the registry after 5 years, and enacting a new provision authorizing the court to terminate registration after 10 years (HB298).
  • Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the executive branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to reduce or eliminate discrimination based on criminal history (HB6921).
  • Louisiana relaxed restrictions on fostering and adoption for people with convictions (HB 112).
  • New York outlawed release of booking information and “mugshots” by police departments without a law enforcement purpose (S1505).

New 2019 laws reduce workplace barriers for people with a criminal record

This is the second in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The full report on 2019 laws is available here.

Consideration of criminal record in occupational licensing and employment

In 2019, 26 states and the federal government enacted 42 separate laws limiting consideration of criminal record in either employment or occupational licensing, or both.  For the first time, Congress joined the lively national conversation about the need to reduce record-related barriers in the workplace that are inefficient and unfair.

Regulation of licensing accounted for 30 of these new laws, continuing a trend begun in 2017 that has transformed the licensing policy landscape and opened opportunities in regulated professions for many thousands of people.  As explained in our report on 2018 laws, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.

The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s, and it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence,  insisting that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, and making agency procedures more transparent and accountable.  In the IJ model, applicants can seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements.

The new licensing laws borrow features of the comprehensive schemes enacted in 2018 in states like Indiana and New Hampshire, though in 2019 most states took a more cautious approach to reining in licensing agencies.  Some states (like Mississippi and Nevada) enacted generally applicable laws for the first time, while others returned to the task begun in previous legislative sessions.  Arizona, for example, has enacted significant licensing reforms for three years running, while Texas enacted no fewer than five separate licensing measures in 2019 alone—two of them of general application and quite significant, and the other three opening opportunities in health care occupations to people who may have been denied them earlier in life.  Arkansas, North Carolina and Oklahoma significantly expanded existing licensing schemes.

Compared to occupational licensing, 2019 was not a banner year for new fair employment laws.  Still, ten states and the federal government enacted a total of 14 new measures to promote opportunities in the workplace.  Most of the new laws continue the expansion of “ban-the-box” laws in public and private employment, including a significant new law covering employment by federal agencies and contractors.

The only 2019 enactment that directly prohibits consideration of criminal record in employment is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  Since 2019 was also a year that saw doubt cast on the legality of the EEOC’s extension of Title VII of the Civil Rights Act of 1964 to cover employment discrimination based on criminal record, more states may step up in coming years.  As of the end of 2019, only four states (California, Hawaii, New York, and Wisconsin) include criminal record discrimination in their general fair employment schemes, and all but California’s law date from the 1970s.  Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not integrated into a broader nondiscrimination law.

The new 2019 licensing and employment laws are described in more detail below, and can be viewed as they interact with other relief provisions in the relevant state profiles from the CCRC Restoration of Rights Project.

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New 2019 laws restore voting rights in 11 states

This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways.  The full report on 2019 laws is available here.

Restoration of Civil Rights

  1. Voting 

In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility.  Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not:  almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with.

The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated.  Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison.  In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people.  These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration:  New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years.

Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole:  California, Connecticut, and Idaho.  Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment.

Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences.  Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights.  (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.)  Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point.

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Broken records: criminal history errors cost jobs and housing

Ariel Nelson of the National Consumer Law Center has authored an important new report, Broken Records Redux, which describes how errors by criminal background check companies harm consumers seeking jobs and housing.  In particular, the report shows how background screeners continue to include sealed and expunged records in criminal background check reports, omit disposition information, misclassify offenses, mismatch the subjects of records, and include other misleading information.  The report also examines problems arising from the use of automated processes to evaluate prospective employees and tenants.

This report, a sequel to a 2012 NCLC report on criminal background errors, observes that since 2012 advocates and federal agencies have litigated many actions for violations of the Fair Credit Reporting Act (FCRA), leading to settlements and judgments requiring background screeners to reform their processes and pay millions in penalties and relief to consumers.  Despite these lawsuits, “companies continue to generate inaccurate reports that have grave consequences for consumers seeking jobs and housing.”  Based on these issues, the report recommends a broad array of legislative and regulatory changes at the federal and state level.  Accompanying the report is an article: Fertile Ground for FCRA Claims, which describes FCRA violations that can result from “inaccurate, incomplete, or outdated” background checks.

This new report also provides support for policy recommendations in our recently released Model Law on Non-Conviction Records, including restrictions on the dissemination of expunged records and records indicating no disposition by commercial providers of criminal records.

“For expungement and clean slate laws to succeed in removing barriers to employment and housing, they must take into account issues like background check reporting, data aggregation, and the use of stale data,” says Nelson, the author of the NCLC report. “I’m happy to see that CCRC’s Model Law on Non-Conviction Records provides guidance for addressing those issues.”

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.

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