When Federal Agencies Can Decline to Ban the Box

Federal agencies can still ask job applicants for their criminal histories early in the process in certain circumstances, such as when onboarding will be unusually expensive, according to new guidance.

The Obama administration in December finalized a rule to “ban the box” in federal hiring, preventing agencies from asking about applicants’ criminal backgrounds until the hiring officials assess the candidates’ merits. The Office of Personnel Management’s reform carved out some exceptions, which it further spelled out in guidance this week.

Agencies must request special permission from the OPM director to ask for candidates’ criminal histories early in the hiring process, acting Director Kathleen McGettigan said in the memorandum. Exemptions may include when employees are likely to need to testify as a witness, or if the expense of completing the application review process would be significant. Positions that require a “rigorous training regimen” and examinations before an applicant can receive an offer may require up front identification of previous convictions, McGettigan said.

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To request an exemption, agencies must indicate to OPM how many vacancies would be affected by the change and how it would verify the criminal background information. Agencies can request exceptions for a group of positions and would no longer need to get permission going forward.

The intended effect of the Obama-era rule was 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.”

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 last year. 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.”

Agencies have until the end of March to comply with the December rule.  

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