[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2021 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 2021

 To prohibit Federal agencies and Federal contractors from requesting 
   that an applicant for employment disclose criminal history record 
information before the applicant has received a conditional offer, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 10, 2015

Mr. Booker (for himself, Mr. Johnson, Ms. Baldwin, Mrs. Ernst, and Mr. 
Brown) introduced the following bill; which was read twice and referred 
     to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To prohibit Federal agencies and Federal contractors from requesting 
   that an applicant for employment disclose criminal history record 
information before the applicant has received a conditional offer, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Chance to Compete for Jobs Act 
of 2015'' or the ``Fair Chance Act''.

SEC. 2. PROHIBITION ON CRIMINAL HISTORY INQUIRIES PRIOR TO CONDITIONAL 
              OFFER FOR FEDERAL EMPLOYMENT.

    (a) In General.--Subpart H of part III of title 5, United States 
Code, is amended by adding at the end the following:

   ``CHAPTER 92--PROHIBITION ON CRIMINAL HISTORY INQUIRIES PRIOR TO 
                           CONDITIONAL OFFER

``Sec.
``9201. Definitions.
``9202. Limitations on requests for criminal history record 
                            information.
``9203. Agency policies; whistleblower complaint procedures.
``9204. Adverse action.
``9205. Procedures.
``9206. Rules of construction.
``Sec. 9201. Definitions
    ``In this chapter--
            ``(1) the term `agency' means `Executive agency' as such 
        term is defined in section 105 and includes--
                    ``(A) the United States Postal Service and the 
                Postal Regulatory Commission; and
                    ``(B) the Executive Office of the President;
            ``(2) the term `appointing authority' means an employee in 
        the executive branch of the Government of the United States 
        that has authority to make appointments to positions in the 
        civil service;
            ``(3) the term `conditional offer' means an offer of 
        employment in a position in the civil service that is 
        conditioned upon the results of a criminal history inquiry;
            ``(4) the term `criminal history record information'--
                    ``(A) except as provided in subparagraph (B), has 
                the meaning given the term in section 9101(a);
                    ``(B) includes any information described in the 
                first sentence of section 9101(a)(2) that has been 
                sealed or expunged pursuant to law; and
                    ``(C) includes information collected by a criminal 
                justice agency, relating to an act or alleged act of 
                juvenile delinquency, that is analogous to criminal 
                history record information (including such information 
                that has been sealed or expunged pursuant to law); and
            ``(5) the term `suspension' has the meaning given the term 
        in section 7501.
``Sec. 9202. Limitations on requests for criminal history record 
              information
    ``(a) Inquiries Prior to Conditional Offer.--Except as provided in 
subsections (b) and (c), an employee of an agency may not request, in 
oral or written form (including through the Declaration for Federal 
Employment (OPM Optional Form 306), or any similar successor form), 
including through the USA Jobs Internet Web site or any other 
electronic means, that an applicant for an appointment to a position in 
the civil service disclose criminal history record information 
regarding the applicant before the appointing authority extends a 
conditional offer to the applicant.
    ``(b) Otherwise Required by Law.--The prohibition under subsection 
(a) shall not apply with respect to an applicant for a position in the 
civil service if consideration of criminal history record information 
prior to a conditional offer with respect to the position is otherwise 
required by law.
    ``(c) Exception for Sensitive Positions.--The prohibition under 
subsection (a) shall not apply with respect to an applicant for an 
appointment to a position--
            ``(1) that requires a determination of eligibility 
        described in subparagraph (A), (B), or (C) of section 
        9101(b)(1); or
            ``(2) as a Federal law enforcement officer (as defined in 
        section 115(c) of title 18).
``Sec. 9203. Agency policies; whistleblower complaint procedures
    ``The Director of the Office of Personnel Management shall--
            ``(1) develop, implement, and publish a policy to assist 
        employees of agencies in complying with section 9202 and the 
        regulations issued pursuant to such section; and
            ``(2) establish and publish procedures under which an 
        applicant for an appointment to a position in the civil service 
        may submit to the Office of Personnel Management a complaint, 
        or any other information, relating to compliance by an employee 
        of an agency with section 9202.
``Sec. 9204. Adverse action
    ``(a) First Violation.--If the Director of the Office of Personnel 
Management determines, after notice and an opportunity for a hearing on 
the record, that an employee of an agency has violated section 9202, 
the Director shall--
            ``(1) issue to the employee a written warning that includes 
        a description of the violation and the additional penalties 
        that may apply for subsequent violations; and
            ``(2) file such warning in the employee's official 
        personnel record file.
    ``(b) Subsequent Violations.--If the Director of the Office of 
Personnel Management determines, after notice and an opportunity for a 
hearing on the record, that an employee that was subject to subsection 
(a) has committed a subsequent violation of section 9202, the Director 
may take the following action:
            ``(1) For a second violation, suspension of the employee 
        for a period of not more than 7 days.
            ``(2) For a third violation, suspension of the employee for 
        a period of more than 7 days.
            ``(3) For a fourth violation--
                    ``(A) suspension of the employee for a period of 
                more than 7 days; and
                    ``(B) a civil penalty against the employee in an 
                amount that is not more than $250.
            ``(4) For a fifth violation--
                    ``(A) suspension of the employee for a period of 
                more than 7 days; and
                    ``(B) a civil penalty against the employee in an 
                amount that is not more than $500.
            ``(5) For any subsequent violation--
                    ``(A) suspension of the employee for a period of 
                more than 7 days; and
                    ``(B) a civil penalty against the employee in an 
                amount that is not more than $1,000.
``Sec. 9205. Procedures
    ``(a) Appeals.--The Director of the Office of Personnel Management 
shall by rule establish procedures providing for an appeal from any 
adverse action taken under section 9204 by not later than 30 days after 
the date of the action.
    ``(b) Applicability of Other Laws.--An adverse action taken under 
section 9204 (including a determination in an appeal from such an 
action under subsection (a) of this section) shall not be subject to--
            ``(1) the procedures under chapter 75; or
            ``(2) except as provided in subsection (a) of this section, 
        appeal or judicial review.
``Sec. 9206. Rules of construction
    ``Nothing in this chapter may be construed to--
            ``(1) authorize any officer or employee of an agency to 
        request the disclosure of information described under 
        subparagraphs (B) and (C) of section 9201(4); or
            ``(2) create a private right of action for any person.''.
    (b) Regulations; Effective Date.--
            (1) Regulations.--Not later than 1 year after the date of 
        enactment of this Act, the Director of the Office of Personnel 
        Management shall issue such regulations as are necessary to 
        carry out chapter 92 of title 5, United States Code (as added 
        by this Act).
            (2) Effective date.--Section 9202 of title 5, United States 
        Code (as added by this Act), shall take effect on the date that 
        is 2 years after the date of enactment of this Act.
    (c) Technical and Conforming Amendment.--The table of chapters for 
part III of title 5, United States Code, is amended by inserting after 
the item relating to chapter 91 the following:

``92. Prohibition on criminal history inquiries prior to        9201''.
                            conditional offer.
    (d) Application to Legislative Branch.--
            (1) In general.--Part A of title II of the Congressional 
        Accountability Act of 1995 (2 U.S.C. 1311 et seq.) is amended--
                    (A) in section 102(a) (2 U.S.C. 1302(a)), by adding 
                at the end the following:
            ``(12) Section 9202 of title 5, United States Code.'';
                    (B) by redesignating section 207 (2 U.S.C. 1317) as 
                section 208; and
                    (C) by inserting after section 206 (2 U.S.C. 1316) 
                the following new section:

``SEC. 207. RIGHTS AND PROTECTIONS RELATING TO CRIMINAL HISTORY 
              INQUIRIES.

    ``(a) Definitions.--In this section, the terms `agency', `criminal 
history record information', and `suspension' have the meanings given 
the terms in section 9201 of title 5, United States Code, except as 
otherwise modified by this section.
    ``(b) Restrictions on Criminal History Inquiries.--
            ``(1) In general.--An employee of an employing office may 
        not request that an applicant for employment as a covered 
        employee disclose criminal history record information if the 
        request would be prohibited under section 9202 of title 5, 
        United States Code, if made by an employee of an agency.
            ``(2) Rules of construction.--The provisions of section 
        9206 of title 5, United States Code, shall apply to employing 
        offices, consistent with regulations issued under subsection 
        (d).
    ``(c) Remedy.--
            ``(1) In general.--The remedy for a violation of subsection 
        (b)(1) shall be such remedy as would be appropriate if awarded 
        under section 9204 of title 5, United States Code, if the 
        violation had been committed by an employee of an agency, 
        consistent with regulations issued under subsection (d), except 
        that the reference in that section to a suspension shall be 
        considered to be a suspension with the level of compensation 
        provided for a covered employee who is taking unpaid leave 
        under section 202.
            ``(2) Process for obtaining relief.--An applicant for 
        employment as a covered employee who alleges a violation of 
        subsection (b)(1) may rely on the provisions of title IV (other 
        than sections 404(2), 407, and 408), consistent with 
        regulations issued under subsection (d).
    ``(d) Regulations To Implement Section.--
            ``(1) In general.--Not later than 18 months after the date 
        of enactment of the Fair Chance to Compete for Jobs Act of 
        2015, the Board shall, pursuant to section 304, issue 
        regulations to implement this section.
            ``(2) Parallel with agency regulations.--The regulations 
        issued under paragraph (1) shall be the same as substantive 
        regulations issued by the Director of the Office of Personnel 
        Management under section 2(b)(1) of the Fair Chance to Compete 
        for Jobs Act of 2015 to implement the statutory provisions 
        referred to in subsections (a) through (c) except to the extent 
        that the Board may determine, for good cause shown and stated 
        together with the regulation, that a modification of such 
        regulations would be more effective for the implementation of 
        the rights and protections under this section.
    ``(e) Effective Date.--Section 102(a)(12) and subsections (a) 
through (c) shall take effect on the date on which section 9202 of 
title 5, United States Code, applies with respect to agencies.''.
            (2) Clerical amendment.--The table of contents of such Act 
        is amended--
                    (A) by redesignating the item relating to section 
                207 as the item relating to section 208; and
                    (B) by inserting after the item relating to section 
                206 the following new item:

``Sec. 207. Rights and protections relating to criminal history 
                            inquiries.''.
    (e) Application to Judicial Branch.--
            (1) In general.--Section 604 of title 28, United States 
        Code, is amended by adding at the end the following:
    ``(i) Restrictions on Criminal History Inquiries.--
            ``(1) Definitions.--In this subsection--
                    ``(A) the terms `agency' and `criminal history 
                record information' have the meanings given those terms 
                in section 9201 of title 5;
                    ``(B) the term `covered employee' means an employee 
                of the judicial branch of the United States Government, 
                other than--
                            ``(i) any judge or justice who is entitled 
                        to hold office during good behavior;
                            ``(ii) a United States magistrate judge; or
                            ``(iii) a bankruptcy judge; and
                    ``(C) the term `employing office' means any office 
                or entity of the judicial branch of the United States 
                Government that employs covered employees.
            ``(2) Restriction.--A covered employee may not request that 
        an applicant for employment as a covered employee disclose 
        criminal history record information if the request would be 
        prohibited under section 9202 of title 5 if made by an employee 
        of an agency.
            ``(3) Employing office policies; whistleblower complaint 
        procedure.--The provisions of sections 9203 and 9206 of title 5 
        shall apply to employing offices and to applicants for 
        employment as covered employees, consistent with regulations 
        issued by the Director to implement this subsection.
            ``(4) Adverse action.--
                    ``(A) Adverse action.--The Director may take such 
                adverse action with respect to a covered employee who 
                violates paragraph (2) as would be appropriate under 
                section 9204 of title 5 if the violation had been 
                committed by an employee of an agency.
                    ``(B) Appeals.--The Director shall by rule 
                establish procedures providing for an appeal from any 
                adverse action taken under subparagraph (A) by not 
                later than 30 days after the date of the action.
                    ``(C) Applicability of other laws.--Except as 
                provided in subparagraph (B), an adverse action taken 
                under subparagraph (A) (including a determination in an 
                appeal from such an action under subparagraph (B)) 
                shall not be subject to appeal or judicial review.
            ``(5) Regulations to be issued.--
                    ``(A) In general.--Not later than 18 months after 
                the date of enactment of the Fair Chance to Compete for 
                Jobs Act of 2015, the Director shall issue regulations 
                to implement this subsection.
                    ``(B) Parallel with agency regulations.--The 
                regulations issued under subparagraph (A) shall be the 
                same as substantive regulations promulgated by the 
                Director of the Office of Personnel Management under 
                section 2(b)(1) of the Fair Chance to Compete for Jobs 
                Act of 2015 except to the extent that the Director of 
                the Administrative Office of the United States Courts 
                may determine, for good cause shown and stated together 
                with the regulation, that a modification of such 
                regulations would be more effective for the 
                implementation of the rights and protections under this 
                subsection.
            ``(6) Effective date.--Paragraphs (1) through (4) shall 
        take effect on the date on which section 9202 of title 5 
        applies with respect to agencies.''.

SEC. 3. PROHIBITION ON CRIMINAL HISTORY INQUIRIES BY CONTRACTORS PRIOR 
              TO CONDITIONAL OFFER.

    (a) Civilian Agency Contracts.--
            (1) In general.--Division C of subtitle I of title 41, 
        United States Code, is amended by adding at the end the 
        following new section:
``Sec. 4713. Prohibition on criminal history inquiries by contractors 
              prior to conditional offer
    ``(a) Limitation on Criminal History Inquiries.--
            ``(1) In general.--Except as provided in paragraphs (2) and 
        (3), an executive agency--
                    ``(A) may not require that an individual or sole 
                proprietor who submits a bid for a contract to disclose 
                criminal history record information regarding that 
                individual or sole proprietor before determining the 
                apparent awardee; and
                    ``(B) shall require as a condition of receiving a 
                Federal contract and receiving payments under such 
                contract that the contractor may not verbally or 
                through written form request the disclosure of criminal 
                history record information regarding an applicant for a 
                position related to work under such contract before the 
                contractor extends a conditional offer to the 
                applicant.
            ``(2) Otherwise required by law.--The prohibition under 
        paragraph (1) does not apply with respect to a contract if 
        consideration of criminal history record information prior to a 
        conditional offer with respect to the position is otherwise 
        required by law.
            ``(3) Exception for sensitive positions.--The prohibition 
        under paragraph (1) does not apply with respect to a contract 
        that requires an individual hired under the contract to access 
        classified information or to have sensitive law enforcement or 
        national security duties.
    ``(b) Whistleblower Complaint Procedures.--The Administrator of 
General Services shall establish and publish procedures under which an 
applicant for a position with a Federal contractor may submit to the 
Administrator a complaint, or any other information, relating to 
compliance by the contractor with subsection (a)(1)(B).
    ``(c) Adverse Action for Violations of Prohibition on Criminal 
History Inquiries.--
            ``(1) First violation.--If the head of an executive agency 
        determines that a contractor has violated subsection (a)(1)(B), 
        such head shall--
                    ``(A) notify the contractor;
                    ``(B) provide 30 days after such notification for 
                the contractor to appeal the determination; and
                    ``(C) issue a written warning to the contractor 
                that includes a description of the violation and the 
                additional penalties that may apply for subsequent 
                violations.
            ``(2) Subsequent violation.--If the head of an executive 
        agency determines that a contractor that was subject to 
        paragraph (1) has committed a subsequent violation of 
        subsection (a)(1)(B), such head shall notify the contractor, 
        shall provide 30 days after such notification for the 
        contractor to appeal the determination, and, in consultation 
        with the relevant Federal agencies, may take actions, depending 
        on the severity of the infraction and the contractor's history 
        of violations, including--
                    ``(A) providing written guidance to the contractor 
                that the contractor's eligibility for contracts 
                requires compliance with this section;
                    ``(B) requiring that the contractor respond within 
                30 days affirming that the contractor is taking steps 
                to comply with this section;
                    ``(C) suspending payment under the contract for 
                which the applicant was being considered;
                    ``(D) terminating the contract under which the 
                applicant was being considered; and
                    ``(E) referring the contractor to the suspension 
                and debarment office of the agency for consideration of 
                actions pursuant to section 9.4 of the Federal 
                Acquisition Regulation.
    ``(d) Definitions.--In this section:
            ``(1) Conditional offer.--The term `conditional offer' 
        means an offer of employment for a position related to work 
        under a contract that is conditioned upon the results of a 
        criminal history inquiry.
            ``(2) Criminal history record information.--The term 
        `criminal history record information' has the meaning given 
        that term in section 9201 of title 5.''.
            (2) Clerical amendment.--The table of sections for division 
        C of subtitle I of title 41, United States Code, is amended by 
        inserting after the item relating to section 4712 the following 
        new item:

``4713. Prohibition on criminal history inquiries by contractors prior 
                            to conditional offer.''.
            (3) Effective date.--Section 4713(a) of title 41, United 
        States Code, as added by paragraph (1), shall apply with 
        respect to contracts awarded pursuant to solicitations issued 
        after the effective date described in section 2(b)(2).
    (b) Defense Contracts.--
            (1) In general.--Chapter 137 of title 10, United States 
        Code, is amended by adding at the end the following new 
        section:
``Sec. 2338. Prohibition on criminal history inquiries by contractors 
              prior to conditional offer
    ``(a) Limitation on Criminal History Inquiries.--
            ``(1) In general.--Except as provided in paragraphs (2) and 
        (3), the head of an agency--
                    ``(A) may not require that an individual or sole 
                proprietor who submits a bid for a contract to disclose 
                criminal history record information regarding that 
                individual or sole proprietor before determining the 
                apparent awardee; and
                    ``(B) shall require as a condition of receiving a 
                Federal contract and receiving payments under such 
                contract that the contractor may not verbally or 
                through written form request the disclosure of criminal 
                history record information regarding an applicant for a 
                position related to work under such contract before 
                such contractor extends a conditional offer to the 
                applicant.
            ``(2) Otherwise required by law.--The prohibition under 
        paragraph (1) does not apply with respect to a contract if 
        consideration of criminal history record information prior to a 
        conditional offer with respect to the position is otherwise 
        required by law.
            ``(3) Exception for sensitive positions.--The prohibition 
        under paragraph (1) does not apply with respect to a contract 
        that requires an individual hired under the contract to access 
        classified information or to have sensitive law enforcement or 
        national security duties.
    ``(b) Whistleblower Complaint Procedures.--The Secretary of Defense 
shall establish and publish procedures under which an applicant for a 
position with a Department of Defense contractor may submit a 
complaint, or any other information, relating to compliance by the 
contractor with subsection (a)(1)(B).
    ``(c) Adverse Action for Violations of Prohibition on Criminal 
History Inquiries.--
            ``(1) First violation.--If the Secretary of Defense 
        determines that a contractor has violated subsection (a)(1)(B), 
        the Secretary shall--
                    ``(A) notify the contractor;
                    ``(B) provide 30 days after such notification for 
                the contractor to appeal the determination; and
                    ``(C) issue a written warning to the contractor 
                that includes a description of the violation and the 
                additional penalties that may apply for subsequent 
                violations.
            ``(2) Subsequent violations.--If the Secretary of Defense 
        determines that a contractor that was subject to paragraph (1) 
        has committed a subsequent violation of subsection (a)(1)(B), 
        the Secretary shall notify the contractor, shall provide 30 
        days after such notification for the contractor to appeal the 
        determination, and, in consultation with the relevant Federal 
        agencies, may take actions, depending on the severity of the 
        infraction and the contractor's history of violations, 
        including--
                    ``(A) providing written guidance to the contractor 
                that the contractor's eligibility for contracts 
                requires compliance with this section;
                    ``(B) requiring that the contractor respond within 
                30 days affirming that the contractor is taking steps 
                to comply with this section;
                    ``(C) suspending payment under the contract for 
                which the applicant was being considered;
                    ``(D) terminating the contract under which the 
                applicant was being considered; and
                    ``(E) referring the contractor to the suspension 
                and debarment office of the agency for consideration of 
                actions pursuant to section 9.4 of the Federal 
                Acquisition Regulation.
    ``(d) Definitions.--In this section:
            ``(1) Conditional offer.--The term `conditional offer' 
        means an offer of employment for a position related to work 
        under a contract that is conditioned upon the results of a 
        criminal history inquiry.
            ``(2) Criminal history record information.--The term 
        `criminal history record information' has the meaning given 
        that term in section 9201 of title 5.''.
            (2) Effective date.--Section 2338(a) of title 10, United 
        States Code, as added by paragraph (1), shall apply with 
        respect to contracts awarded pursuant to solicitations issued 
        after the effective date described in section 2(b)(2).
            (3) Clerical amendment.--The table of sections for chapter 
        137 of title 10, United States Code, is amended by inserting 
        after the item relating to section 2337 the following new item:

``2338. Prohibition on criminal history inquiries by contractors prior 
                            to conditional offer.''.
    (c) Revisions to Federal Acquisition Regulation.--
            (1) In general.--Not later than 18 months after the date of 
        enactment of this Act, the Federal Acquisition Regulatory 
        Council shall revise the Federal Acquisition Regulation to 
        implement section 4713 of title 41, United States Code, and 
        section 2338 of title 10, United States Code, as added by this 
        section.
            (2) Conformity with office of personnel management 
        regulations.--The Federal Acquisition Regulatory Council shall 
        revise the Federal Acquisition Regulation under paragraph (1) 
        in conformity with the regulations issued by the Director of 
        the Office of Personnel Management under section 2(b)(1) to the 
        maximum extent practicable. The Council shall include together 
        with such revision an explanation of any substantive 
        modification of the Office of Personnel Management regulations, 
        including an explanation of how such modification will more 
        effectively implement the rights and protections under this 
        section.

SEC. 4. REPORT ON EMPLOYMENT OF INDIVIDUALS FORMERLY INCARCERATED IN 
              FEDERAL PRISONS.

    (a) Definition.--In this section, the term ``covered individual''--
            (1) means an individual who has completed a term of 
        imprisonment in a Federal prison for a Federal criminal 
        offense; and
            (2) does not include an alien who is or will be removed 
        from the United States for a violation of the immigration laws 
        (as such term is defined in section 101 of the Immigration and 
        Nationality Act (8 U.S.C. 1101)).
    (b) Study and Report Required.--Not later than 6 months after the 
date of enactment of this Act, and every 5 years thereafter, the 
Secretary of Labor, in coordination with the Director of the Bureau of 
the Census and the Director of the Bureau of Justice Statistics, 
shall--
            (1) conduct a study on the employment of covered 
        individuals after their release from Federal prison, including 
        by collecting--
                    (A) demographic data on covered individuals, 
                including race, age, and sex; and
                    (B) data on covered individuals who are denied 
                employment, including the reasons for the denials; and
            (2) submit a report that does not include any personally 
        identifiable information on the study conducted under paragraph 
        (1) to--
                    (A) the Committee on Homeland Security and 
                Governmental Affairs of the Senate;
                    (B) the Committee on Health, Education, Labor, and 
                Pensions of the Senate;
                    (C) the Committee on Oversight and Government 
                Reform of the House of Representatives; and
                    (D) the Committee on Education and the Workforce of 
                the House of Representatives.
                                 <all>