Obama Issues New Regulation to Ease Federal Hiring of Former Criminals

The Obama administration will propose on Monday new regulations prohibiting federal agencies from inquiring about a job applicant’s criminal history until after a conditional offer has been made, the Office of Personnel Management announced Friday.

OPM’s proposed rule will -- with certain exceptions -- ban agencies from issuing any forms that ask about applicants’ criminal backgrounds until the potential hirers assess the candidates’ merits. The move follows a push in cities and municipalities across the country to “ban the box” -- referring to a box on job applications requiring individuals to indicate up front if they have criminal records -- as well as pressure from lawmakers and a promise from Obama himself to bring the reform to the federal government.

“OPM is proposing this change to continue to encourage applicants from all segments of society to seek federal employment,” the agency wrote in the rule set to be formally issued next week, “and to ensure that for most federal jobs, individuals with prior criminal or other adverse history are given the opportunity to demonstrate their knowledge, skills, and ability in a fair and open competition.”

Currently, many agencies issue Optional Form 306 to applicants at the start of the hiring process, which asks several questions about their records. This practice could discourage “motivated, well-qualified individuals” from applying for federal jobs, OPM said. It potentially ignores the rehabilitation process, the human resources agency added, as well as the circumstances of any arrests and whether considering criminal history is a “business necessity.”

Preventing candidates from joining federal service because they were previously arrested could “limit their opportunities to obtain the means to secure stable housing, provide support for their families and contribute to their communities,” OPM said.

The proposed rule creates a mechanism for agencies to ask OPM for an exception, which the agency said it will provide on a case-by-case basis to maximize flexibility. OPM acknowledged there are, in some instances, “legitimate, job/position-related reasons” to request an applicant’s criminal history up front.

“These exceptions could include, for example, certain law enforcement or public trust positions where the ability to testify as a witness is an aspect of the work, and thus a clean criminal history record would be essential to the ability to perform one of the duties of the position effectively,” OPM said. “In these cases, the agency will need to demonstrate the validity of its conclusion that the presence of certain background information should be disqualifying.”

OPM also said if the hiring process for a certain position is rigorous and costly, it might make sense to conduct criminal background checks on the applicants at the outset. The agency said it could grant exceptions on an individual position or by a class of positions.

Acting OPM Director Beth Cobert said in a blog post Friday that one in three working-age Americans has an arrest record, and removing their barriers to employment would create a more “fair and effective” criminal justice system.

“This administration is committed to pursuing public policies that promote fairness and equality,” Cobert wrote. “As the nation’s largest employer, the federal government should lead the way and serve as a model for all employers -- both public and private.”

She added that not all agencies are collecting criminal background information up front, and other agencies should follow suit.

“The proposed rule builds on the current practice of many agencies, which already choose to collect information on criminal history at late stages of the hiring process,” Cobert said. “The rule would take the important step to codify, formalize, and expand this best practice.”

The administration issued the rule after Obama in November called on OPM to “take action where it can” to delay inquiries into federal applicants’ criminal histories. A bipartisan, bicameral group of lawmakers proposed the Fair Chance Act last year to accomplish essentially the same goals as the new proposed regulation, but some of its sponsors recently said the hope for legislative action was slim and asked Obama to take unilateral action.

“I applaud the president for seeking to implement fair chance hiring policies across federal agencies,” said Rep. Elijah Cummings, D-Md., a sponsor of the Fair Chance Act. “I look forward to working with the administration and stakeholders nationwide to ensure that a criminal record does not become a life sentence.”

In a separate memorandum issued Friday, the White House created the Federal Interagency Reentry Council, directing the heads of major federal agencies to develop strategies to reduce recidivism and help individuals returning from prison “become productive citizens.” The announcements came on the last day of National Reentry Week. 

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