If you are familiar with the Ban the Box statutes that have been popping up in state and local jurisdictions around the country, you already know the central point of the Fair Chance Act (FCA). The FCA would prohibit federal agencies and federal contractors from making a request for or use of the criminal history of a job applicant until after the conditional offer of employment.
The Fair Chance to Compete for Jobs Act was introduced simultaneously in both houses of Congress on September 10, 2015, as S.2021 and H.R.3470, with bipartisan sponsorship (though the House sponsors are more heavily Democrats). At this point, it has been referred to relevant committees including Homeland Security in the Senate and several committees in the House, awaiting further action.
The bill as submitted includes several exclusions for jobs that require criminal background checks by law, jobs in law enforcement, and jobs where a national security clearance or “duty” is involved. It directs various administrative offices to create procedures and regulations to implement the Act, so no one needs to plan for imminent action.
However, in the longer term, the Fair Chance Act has a decent probability of enactment if it does not get caught up in Presidential election year politics. With bi-partisan sponsors in both houses and a plethora of similar statutes across the country, the Act is not particularly controversial. The Senate version of the bill was reported out of committee on October 7 with a recommendation that the full chamber consider it. Since only one in four bills gets this far, there’s about a 50-50 chance it will eventually be enacted, based on past performance.
The federal Fair Chance Act should not be confused with legislation signed into law by New York Mayor de Blasio in June 2015. The New York City legislation with the same name contains very similar provisions, but applies to all private employers operating in the city as well as city agencies. Again, exceptions were made for jobs required by law to have a criminal background check and for jobs in law enforcement agencies.
The National Employment Law Project (NELP) has been backing a federal version of the Ban the Box laws for a long time. In January 2015 it published Advancing a Federal Fair Chance Hiring Agenda that summarized the progress of Ban the Box and analyzed the level of compliance with these hiring practices at the federal level. It concluded that federal agencies and contractors followed a variety of incompatible and variously effective procedures that did not adequately open job opportunities to ex-offenders.
The core purpose of all these laws is to improve the odds of ex-offenders in finding a job. It will be a task for future research to determine if they are successful in doing this.
We’ll continue to keep you updated.