Obama Makes More Changes to Federal Hiring Through Regulatory Process

The Obama administration put forward two rules on Wednesday to change the federal hiring process, with veterans and former felons as the primary beneficiaries.

The Office of Personnel Management issued a final rule to ban agencies from issuing any forms that ask about applicants’ criminal backgrounds until the potential hiring officials assess the candidates’ merits, with a few exceptions. 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.

The intended effect of this rule is to encourage more individuals with “the requisite knowledge, skills, and ability to apply for federal positions by making it more clear that the government provides a fair opportunity to compete for federal employment to applicants from all segments of society,” OPM wrote in the final rule, “including those with prior criminal histories or who have experienced financial difficulty through no fault of their own.”

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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.”

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.

OPM said it heard several comments in opposition to the change since it issued a proposed rule in April, but declined to make any significant changes.

Rep. Elijah Cummings, D-Md., who last year introduced a bill to codify what will become a federal rule in 30 days, lauded the hiring reform.

“Fair chance hiring policies are supported by a broad bipartisan coalition of Republicans and Democrats because they are a common-sense way to help formerly incarcerated people re-enter the workforce and contribute to our society,” Cummings said. “I commend the Obama administration for finalizing this rule, which will help level the playing field and break the harmful cycles of crime, poverty, and scarce opportunities in our communities.”

He called on Congress to pass legislation to make the changes permanent.

OPM also issued a proposed rule to ensure federal agencies institute veterans’ preference in hiring more often, even in cases in which the position is non-competitive. The rule, when finalized, will create a stronger framework for a policy already in place since the U.S. Court of Appeals for the Federal Circuit’s 2009 decision in Gingery v. Department of Defense. That ruling found veterans’ preference rights must be applied in the same way for both competitive and excepted service positions.

OPM issued guidance on the decision shortly after it was announced, but never amended the text of the regulation.

The rules from OPM this week number among the many last-minute changes the Obama administration is instituting in its final weeks. Earlier this month, OPM made it easier for federal employees to earn “tenure,” a designation that eases the path for ex-feds to regain federal employment.

Currently, federal employees have to serve for a “substantially continuous” three-year period to attain career tenure. “Substantially continuous” is defined as no break in service of more than 30 days. The change will enable feds to earn the status for any three years of total service, “whether or not continuous.”

Obtaining tenure allows individuals who separate from federal service to have lifetime reinstatement eligibility, meaning they would not have to compete with the general public for a future competitive service appointment. It also helps employees who are laid off due to a reduction in force rejoin the federal workforce later.

The administration made a larger-scale attempt at easing the burdensome federal hiring process this month when OPM and the Office of Management and Budget issued joint guidance to implement the “proven” strategies from the administration’s Hiring Excellence campaign, as well as feedback from thousands of managers and human resources staff solicited over the last year. The guidance aims to instill several core Obama administration principles into federal hiring, such as emphasizing the importance of workforce planning and strategic recruiting, clarifying the distinct roles of and need for collaborating between HR staff and hiring managers, boosting diversity and improving assessment strategies. 

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