Congress Passes Landmark ‘Ban the Box’ Legislation - National Employment Law
700,000 new job applicants with records will now have a fairer chance at federal agency and contractor employment.
Washington, DC—following House passage last week, the U.S. Senate passed the Fair Chance to Compete for Jobs Act of 2019 (FCA), a bill that will “ban the box” on job applications for positions with federal agencies and private employers that contract with the federal government. By prohibiting conviction inquiries of job applicants until after the employer has made a conditional job offer, over 700,000 people with an arrest or conviction record will have a fairer chance at seeking employment and securing a future for themselves and their families. The robust measure, which was incorporated in the National Defense Authorization Act (NDAA), represents a major milestone for the ban-the-box movement that has been led by directly impacted people and fellow advocates across the states. The passage of the FCA (H.R. 1076/S. 387) was made possible by the strong bipartisan backing of criminal justice reform leaders in both the Senate and the House of Representatives, including the lead sponsors, Senators Cory Booker (D-NJ) and Ron Johnson (R-WI) and Congressmen Elijah Cummings (D-MD) and Doug Collins (R-GA). “All of us who have worked on this bill since 2016 is deeply mindful of the passing of Congressman Cummings, who passionately and skillfully marshaled the Fair Chance Act through the House,” said Maurice Emsellem, fair chance director of the National Employment Law Project (NELP). “His exceptional legacy will live on in our communities in the form of the landmark racial and economic justice laws he championed, including the Fair Chance Act,” said Mr. Emsellem.
The passage of the Fair Chance Act is a milestone in the movement founded and led by, a membership organization based in Oakland, California that is devoted to the full restoration of rights denied people with records. ban-the-box All of Us or None Search... C e-Publications Campaigns Experts About News Help NELP strengthen our fight for workers and economic justice.
According to Dorsey Nunn, executive director of Legal Services with Children and founding member of All of Us or None, “The Fair Chance Act brings us one historic step closer to our ultimate goal of ending structural discrimination against people with arrest and conviction records. We proudly embrace each progressive achievement that brings us and our families closer to justice and to the full and fair access to jobs, housing, education, public benefits, voting, and all the basic measures of full participation in our society,” said Mr. Nunn.
In partnership with directly impacted people, NELP has played an instrumental role in developing the fair chance framework. The Fair Chance Act is the first major criminal justice legislation passed since the was signed into law last year.
It builds on the hiring reforms that have been embraced by major corporations, 35 states, Washington D.C., and over 150 cities that have fair chance policies, as well as the ban-the-box regulation issued in 2016 by the Office of Personnel Management (OPM), which governs federal agency hiring. Thirteen states extend their laws to private employers, and over 30 local laws apply as well to government contractors. Specifically, the FCA includes the following key provisions: Over 70 million adults in the U.S. have an arrest or conviction record that will likely show up on an employment background check.
Consequentially, one out of three applicants can face serious challenges when attempting to secure a job. NELP estimates that every year, over 700,000 new job applicants with highly debated First Step Act adopted Federal agencies (including the executive, legislative, and judicial branches) and federal contractors may not request criminal history information until a conditional job offer has been extended to the applicant.
• Positions in law enforcement, those involving access to classified or national security information, and other specific positions are exempted from the law.
• Taking into account relevant civil rights laws, OPM will issue regulations implementing key features of the FCA, which will be adopted by the General Services Administration and other oversight entities enforcing the law.
• The oversight entities will adopt procedures for job applicants and private contractors to file complaints alleging violations of the law.
• Escalating penalties can be imposed after an initial written warning is issued to a federal agency representative or private contractor that violates the law (depending on the severity of the violation, federal agencies are authorized to suspend payment to a federal contractor until the employer complies with the law).
• The law will take effect two years from the date of enactment.
Over 70 million adults in the U.S. have an arrest or conviction record that will likely show up on an employment background check. Consequentially, one out of three applicants can face serious challenges when attempting to secure a job. NELP estimates that every year, over 700,000 new job applicants with records will benefit from the Fair Chance Act. The estimate takes into account the number of people applying for roughly 150,000 federal contract positions each year and a conservative assumption that 10 percent of applicants will have a record, which is consistent with OPM’s reported rate.
NELP’s estimate does not include the number of applicants with records applying for federal agency positions since OPM has had a ban-the-box policy in place since 2016, nor does it factor in whether federal contractors will extend the policy companywide to workers who are not working on a federal contract. “This is a historic vote that builds off decades of work led by formerly incarcerated people,” said Megan French-Marcelin, the JustLeadershipUSA’s #WORKINGfuture campaign lead. “We applaud the passage of this important legislation that will open employment opportunities for thousands of people across the country. While ‘ban the box’ will not within itself eliminate all discriminatory hiring practices against people with records, the passage of the FCA indicates that there is a growing dedication to economic justice for all people,” said Ms. French-Marcelin.
As recent polling data shows, Americans of all political persuasions overwhelmingly support fair chance reform. Indeed, the Fair Chance Act was backed by a remarkably diverse array of progressive, conservative, and non-partisan organizations that all lobbied for the bill. “People deserve the right to work and provide for their families. The Fair Chance Act eliminates burdensome employment obstacles that have relegated to the margins of individuals with arrest or conviction histories. This bill will allow them to reintegrate in a more practical and fairway, and give them—and the families they support—a chance to succeed. We applaud Congress for following a majority of the states, Washington D.C., and many major employers by taking such an important step to remove unfair barriers to employment. They are not only strengthening the fabric of our society but also our economy,” said Vanita Gupta, president, and CEO of The Leadership Conference on Civil and Human Rights.