Developments at OPM: On April 27, 2022, the Office of Personnel Management (OPM) published a Proposed Rule with Request for Comments in the Federal Register, 87 Fed.Reg. 24,885-24,903. The proposed rule implements the Fair Chance Act from the 2020 National Defense Authorization Act, which was previously analyzed in this blog. The Fair Chance Act is a “ban the box” statute which regulates questioning job applicants about their criminal background and credit history prior to issuing a conditional job offer, including through requiring applicants to fill out Optional Form 306 (OF-306) questionnaires. The Fair Chance Act is intended to bolster preexisting OPM ban the box regulations (analyzed in this blog) for federal executive branch employees.
The proposed rule creates enforcement mechanisms for implementing the Fair Chance Act mandate. Agencies are required to establish complaint mechanisms that allow job applicants to report violations of the Fair Chance Act (that is, situations where applicants are improperly asked to disclose their criminal background or credit history prior to receipt of a conditional job offer). The proposed rules also set up mechanisms for processing adverse actions an imposition of the monetary penalties specified in the Fair Chance Act against agency managers found to have violated the Fair Chance Act, including appeal rights for major adverse actions to the Merit Systems Protection Board. Under the Proposed Rule, agencies would be required to establish Fair Chance Act complaints mechanisms within 90 days of the effective date of the Final Rule, with a separation between the staff handling hiring and complaint processing functions within the agency for a given selection and complaint. Complaints would be due within 30 days of when the applicant knew or should have known of the violation (to be extended if the applicant was not notified of the Fair Chance Act complaint mechanism). Once filed, complaints must be investigated within 60 days. The proposed rule further delineates more precisely the limited category of employees exempted from the Fair Chance Act requirements.
