Hidden deep within the National Defense Authorization Act for Fiscal 2020 is a “ban the box” provision that restricts federal contractors’ inquiries into their applicants’ criminal histories. This new provision, which went into effect on December 20, 2021, prohibits federal contractors from requesting “the disclosure of criminal history record information regarding an applicant for a position related to work under” a federal contract “before the contractor extends a conditional offer to the applicant.” There is an exception for where such an inquiry is required by law, or where the position requires certain security clearances. The Defense Department is expected to issue regulations later this month that will clarify when such exceptions may apply.
For now, federal contractors should review their employment application forms and remove any questions about the applicant’s criminal record. Likewise, such questions should be omitted from the interview process. Once a conditional offer of employment is made, such questions are generally fair game.
January 4, 2022; Vandeventer Black LLP