Sen. Mike Lee, R-Utah, is one of the critics of OPM's proposed requirement.

Sen. Mike Lee, R-Utah, is one of the critics of OPM's proposed requirement. Susan Walsh/AP

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White House: Proposed Hiring Rule Was Meant to Help, Not Hurt Ex-Offenders Seeking Federal Jobs

Administration seeks to clarify intent of proposed requirement that applicants disclose participation in pretrial diversion programs, amid outcry.

Officials within the Trump administration on Wednesday sought to clarify that a proposal to require federal job seekers to disclose whether they have participated in pretrial diversion programs was intended to help ex-offenders obtain jobs with the government, not disqualify candidates.

This week, the Office of Personnel Management was the target of outrage from lawmakers in both major political parties and criminal justice reform groups over a regulation it proposed in February to expand what agencies ask job candidates about their criminal histories to include pretrial diversion programs, which offer rehabilitation and other services in place of prosecution and prison for minor crimes. The proposal was first reported by The Marshall Project in March.

“The proposed change closes a gap for those who participate in or successfully complete this type of alternative disposition and may not have to answer affirmatively to the current question and report the details of the offense,” OPM wrote in its justification for the proposal.

Criminal justice reform advocates from the right and the left saw the measure as an effort to make it easier to dismiss applicants who have been incarcerated or otherwise charged with a crime. Currently, OPM policy is to ask candidates if they have a criminal record after they have received a conditional offer of employment, a practice known as “ban the box” that lawmakers hope to codify with the Fair Chance Act. That bill is making its way through Congress.

A senior administration official told Government Executive the proposal to ask about pretrial diversions was actually an effort to make sure applicants who participated in such programs would be less likely to fail a background check.

The source said that OPM had received reports that some applicants were denied jobs because they had not disclosed their participation in diversion programs, which raised red flags with background check investigators. The proposed change, the official said, was intended to avoid confusion, rather than add new restrictions.

“The administration is fully committed to implementing the First Step Act and implementing criminal justice reform more broadly,” the official said. “The intent was to make sure that no unfairness existed for those who have gone through diversion programs, and to ensure that they are treated fairly in the process. If there are any adverse effects, we [can] certainly take another look [at the issues] before it is put in place.”

That willingness to reexamine how best to ensure applicants know what they should disclose comes as a growing group of lawmakers and activist groups are demanding rescission of the original proposal. They argue that the solution to this problem is not to ensure applicants know they must disclose their participation in diversion programs, but rather that they should not have to disclose it at all.

On Tuesday, Sens. Chris Van Hollen, D-Md., and Mike Lee, R-Utah, sent a letter to acting OPM Director Margaret Weichert urging her to reconsider the proposed regulation.

“This [rule] is inconsistent with and subverts efforts at the state and federal levels to promote reintegration and rehabilitation programs,” they wrote. “The [regulation] claims that asking about diversion programs will ‘close a [question] gap’ and improve application accuracy. But this is a solution in search of a problem. Applicants should not have to disclose behavior that may not have resulted in conviction on a job application.”

The American Civil Liberties Union also weighed in, sending a letter to National Bureau of Background Investigations Program Manager Donna McLeod expressing concern that the change could lead to federal agencies turning away otherwise qualified job seekers.

“In inquiring about criminal convictions, a prospective federal employee should not be asked about their participation in a pretrial program,” the ACLU wrote. “Pretrial diversion participation is not a conviction and should not be considered relevant in evaluating a person’s candidacy for federal employment.”