The Fair Chance to Compete for Jobs Act of 2019 (FCA) as applied to Positions with the Legislative Branch
What is the law about?
The Fair Chance to Compete for Jobs Act of 2019 (FCA), also known as the Federal “Ban the Box” law, prohibits Federal employers, including employing offices in the legislative branch, from requesting that applicants for most jobs disclose information on arrest and conviction history before a conditional job offer is extended to the applicant. A conditional offer of employment is an offer that is conditioned only on the results of a criminal history inquiry. The FCA is intended to give formerly incarcerated individuals a fair chance to compete for employment in the Federal Government by barring most requests for criminal history record information until the end of the hiring process. The FCA became effective on December 20, 2021.
Which Employing Offices in the Legislative Branch Does the FCA Cover?
The FCA applies to entities of the U.S. House of Representatives and the U.S. Senate; the Office of Congressional Accessibility Services; the Capitol Police; the Congressional Budget Office; the Office of the Architect of the Capitol; the Office of Attending Physician; the Office of Congressional Workplace Rights; the Office of Technology Assessment; the Library of Congress; the Stennis Center for Public Service; the China Review Commission; the Congressional Executive China Commission; the Helsinki Commission; and the United States Commission on International Religious Freedom.
Who is Protected by the FCA in the Legislative Branch?
Applicants for most employment vacancies with employing offices in the legislative branch are protected by the FCA.
Are there Exceptions to the FCA Prohibitions?
Yes. An employing office may inquire about criminal history at any stage of the process if:
- consideration of criminal history prior to a conditional offer is otherwise required by law;
- the position requires a determination of eligibility for access to classified information, assignment to or retention in sensitive national security duties or positions, or acceptance or retention in the armed forces; or
- the applicant is applying for a position as law enforcement officer.
What Can’t Employers Ask About?
On an application form or during the interview process, the law prohibits all employees of employing offices from requesting information about:
- arrests or indictments;
- formal criminal charges;
- disposition of any of these actions including sentencing, correction, supervision, or release decisions; or
- sealed or expunged records available to State or local criminal justice agencies.
An employing office may ask you to disclose such information only after extending an offer of employment conditioned on the results of a criminal history inquiry.
Does the FCA Address Background and Credit Checks?
No. The FCA does not change the application of existing law on the use of information resulting from background or credit checks. However, under other existing laws, employing offices are prohibited from discriminating when they use criminal history information, and employing offices cannot conduct background checks or use the information obtained in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate impact.
If you think an employing office discriminated against you based on information in your background report, contact the OCWR at (202) 724-9250.
Does the FCA Bar Employing Offices from Considering Criminal History?
No. The purpose of the FCA is not to remove access to criminal history information about an applicant for government employment; rather, the purpose is to move that information to the end of the process to give those with a criminal history a fair chance to compete for a Federal job.
What if an Employing Office Asks About Criminal History Record Information Too Early?
If an employing office requests that you disclose criminal history record information on a job application or during the interview process before extending you a conditional job offer, you can file a claim with the Office of Congressional Workplace Rights (OCWR) within 180 days of the alleged violation. FCA Claim Forms are available at the OCWR website. FCA claims can be filed by emailing them to ocwrefile@ocwr.gov.
Questions? Confidential advising is available at no cost. Call the OCWR at (202) 724-9250.
What are the Remedies for FCA Violations?
If an OCWR Hearing Officer determines a violation of the FCA occurred, the employee of an employing office found in violation will be issued a written warning. Employees who continue to violate the FCA can be suspended for a period of time or fined up to $1,000 per infraction.
Do Any Other Employment Laws Incorporated by the CAA Govern the Use of Criminal History Information?
Yes. The use of an individual’s criminal history in making employment decisions may, in some instances, violate the anti-discrimination provisions of the CAA (whether or not it also violates the FCA). For example, it is illegal to discriminate in considering criminal history information based on your race, national origin, color, sex, religion, disability, uniformed service, genetic information (including family medical history) or age, if you’re 40 or older. It is also illegal to reject applicants with a criminal record for a job, based on their ethnicity or race, but to hire other applicants with the same criminal record, because they are of a different ethnicity or race.
Claims of discrimination concerning the use of criminal history information may be pursued with the OCWR and, if successful, may result in statutory remedies including damages. If you believe an employing office discriminated against you in its request for or use of criminal history information, please contact the OCWR at (202) 724-9250.
Access the OCWR Fair Chance to Compete for Jobs Act (FCA) Claim Form
OCWR Interim Procedures for Claims Arising under the Fair Chance to Compete for Jobs Act (FCA)