[Congressional Record Volume 170, Number 100 (Thursday, June 13, 2024)]
[Senate]
[Pages S4091-S4095]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    NOTICE OF PROPOSED RULEMAKING FROM THE OFFICE OF CONGRESSIONAL 
                      WORKPLACE RIGHTS (``OCWR'')

                                          U.S. Congress, Office of


                               Congressional Workplace Rights,

                                    Washington, DC, June 13, 2024.
     Hon. Patty Murray,
     President Pro Tempore, U.S. Senate,
     U.S. Capitol, Washington, DC.
       Dear Madam President: Section 207(d) of the Congressional 
     Accountability Act (CAA), 2 U.S.C. 1316a(d), requires the 
     Board of Directors of the Office of Congressional Workplace 
     Rights (Board) to issue substantive regulations implementing 
     section 207 of the CAA relating to the Fair Chance to Compete 
     for Jobs Act of 2019 (FCA).
       Section 304(b)(1) of the CAA, 2 U.S.C. 1384(b)(1), requires 
     that the Board issue a general notice of proposed rulemaking 
     by transmitting such notice to the Speaker of the House of 
     Representatives and the President Pro Tempore of the Senate 
     for publication in the Congressional Record on the first day 
     of which both Houses are in session following such 
     transmittal.
       On behalf of the Board, I am hereby transmitting the 
     attached Notice of Proposed Rulemaking to the President Pro 
     Tempore of the Senate. I request that this notice be 
     published in the Senate section of the Congressional Record 
     on the first day on which both Houses are in session 
     following receipt of this transmittal. In compliance with 
     section 304(b)(2) of the CAA, a comment period of 30 days 
     after the publication of this Notice of Proposed Rulemaking 
     is being provided before adoption of the rules.
       Any inquiries regarding this notice should be addressed to 
     Martin J. Crane, Executive Director of the Office of 
     Congressional Workplace Rights, Room LA-200, 110 Second 
     Street S.E., Washington, D.C. 20540-1999; 202-724-9250.
           Sincerely,

                                       Barbara Childs Wallace,

                                  Chair of the Board of Directors,
                         Office of Congressional Workplace Rights.

    NOTICE OF PROPOSED RULEMAKING FROM THE OFFICE OF CONGRESSIONAL 
                      WORKPLACE RIGHTS (``OCWR'')

                                 ______
                                 
     Re NEW PROPOSED REGULATIONS IMPLEMENTING CERTAIN SUBSTANTIVE 
         RIGHTS AND PROTECTIONS FOR JOB APPLICANTS, AS REQUIRED BY 
         SECTION 207 OF THE CONGRESSIONAL ACCOUNTABILITY ACT OF 
         1995, AS AMENDED (``CAA'')

     Background
       The purpose of this Notice of Proposed Rulemaking 
     (``Notice'') is to propose substantive regulations that will 
     implement the

[[Page S4092]]

     Fair Chance to Compete for Jobs Act of 2019 (``FCA'') in the 
     legislative branch of the federal government. The FCA, as 
     applied by section 207 of the CAA, codified at 2 U.S.C. 
     Sec. 1316b, places limitations on employing office requests 
     for criminal history record information from job applicants 
     prior to a conditional offer of employment.
       The CAA applies the rights and protections of numerous 
     federal labor and employment statutes to covered employees 
     and employing offices in the legislative branch. Section 
     1316b of the CAA prohibits employing offices from requesting 
     that an applicant for employment disclose criminal history 
     record information before the employing office makes a 
     conditional offer of employment to that applicant. Section 
     1316b also provides that applicants for employment may rely 
     on the CAA's existing claims procedures under subchapter IV 
     and, through incorporation of 5 U.S.C. Sec. 9204, establishes 
     minimum penalties and procedures to be followed before such 
     penalties may be assessed against an employee who violates 
     the FCA.
     What is the authority under the CAA for these proposed 
         substantive regulations?
       The authority under the CAA for these proposed substantive 
     regulations is found in two sections of the CAA. Section 
     1316b applies certain provisions of the FCA, title 5, chapter 
     92 of the United States Code. Section 1316b provides rights 
     and protections to job applicants against criminal background 
     checks prior to a conditional offer of employment. Subsection 
     1316b(d) requires the OCWR Board of Directors (``Board'') to 
     issue substantive regulations to implement these protections 
     that are:

     the same as substantive regulations promulgated by the 
     Director of the Office of Personnel Management . . . 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.

       The second CAA section that provides authority to the Board 
     to promulgate these regulations is section 304, codified at 2 
     U.S.C. Sec. 1384. These proposed substantive regulations 
     implement the statutory protections embodied in section 
     1316b.
       Although Congress has required the Board to propose 
     substantive regulations that are the same as the FCA 
     regulations promulgated by the Office of Personnel Management 
     (``OPM''), Congress has not required the Board to adopt OPM's 
     procedural regulations for FCA violations. Section 
     1316b(c)(2) instead provides that:

     An applicant for employment as a covered employee who alleges 
     a violation of subsection (b)(1) may rely on the provisions 
     of subchapter IV (other than section 1407 or 1408 of this 
     title, or a provision of this subchapter that permits a 
     person to obtain a civil action or judicial review) . . . .

       Accordingly, the Board will address procedures through 
     amendments to the OCWR Procedural Rules, under section 1383 
     of the FCA.
     Do similar rights and protections currently apply via the CAA 
         to legislative branch employing offices and covered 
         employees?
       No. Section 1316b creates a unique framework under the CAA 
     providing for penalties against employees who violate the 
     FCA.
     What rights and protections are applied to eligible employees 
         under section 1316b?
       Congress enacted the FCA in December 2019, and the final 
     regulations promulgated by OPM for the executive branch 
     became effective in October 2023. The FCA's provisions 
     prohibit Federal employers, including employing offices in 
     the legislative branch, from requesting that applicants for 
     most jobs disclose criminal record history information prior 
     to extending a conditional job offer to the applicant. The 
     FCA enforces this prohibition through the assessment of 
     penalties against employees responsible for violations.
       The selected statutory provisions that Congress 
     incorporated into the CAA and determined would apply to 
     employing offices are subsections 9201(1), (4), and (5) and 
     sections 9202, 9204, and 9206 of title 5. These sections 
     incorporate definitions found in other code sections, in 
     particular 5 U.S.C. Sec. 7501, 5 U.S.C. Sec. 9101, and 18 
     U.S.C. Sec. 115(c).
       Congress adopted the definitions of the terms ``agency,'' 
     ``criminal history record information,'' and ``suspension,'' 
     as found in subsections 9201(1), (4), and (5) respectively, 
     ``except as otherwise modified by'' section 1316b. Section 
     1316b does not further modify the definitions of ``agency'' 
     or ``criminal history record information,'' but section 
     1316b(c)(1) does further clarify that a ``suspension'' is to 
     ``be considered . . . a suspension with the level of 
     compensation provided for a covered employee who is taking 
     unpaid leave under section 1312'' of the CAA.
       Section 9202 establishes a general prohibition against 
     inquiries regarding criminal history record information. An 
     employee of an employing office may not request, in oral or 
     written form, that an applicant for a position disclose 
     criminal history record information prior to the employing 
     office extending a conditional offer to the applicant.
       Section 9202 also incorporates a number of exceptions. 
     These exceptions allow criminal background history inquiries 
     for law enforcement officers, for employees who would have 
     access to classified information or who would serve in a 
     sensitive national security position, for acceptance or 
     retention in the armed services, or for other purposes as 
     otherwise required by law.
       Section 9204 provides for adverse actions against employees 
     found, after notice and an opportunity for a hearing on the 
     record, to have violated the prohibition regarding inquiries 
     into applicants' criminal history record information. The 
     adverse actions include suspension of and fines imposed upon 
     liable employees. Section 9204 additionally provides that 
     fines and suspensions escalate based upon whether the 
     employee has previously been found to have violated the FCA.
       Section 9206 further clarifies that the FCA prohibits the 
     request of sealed or expunged records or records relating to 
     acts of juvenile delinquency. Section 9206 also clarifies 
     that the FCA does not create a private right of action for 
     any person.
     Procedural Summary

     How are substantive regulations proposed and approved under 
         the CAA?
       Pursuant to section 1384, the procedure for proposing and 
     approving such substantive regulations provides that:
       (1) the Board of Directors propose substantive regulations 
     and publish a general notice of proposed rulemaking in the 
     Congressional Record;
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking;
       (3) after consideration of comments by the Board of 
     Directors, the Board adopt regulations and transmit notice of 
     such action (together with the regulations and a 
     recommendation regarding the method for Congressional 
     approval of the regulations) to the Speaker of the House and 
     President pro tempore of the Senate for publication in the 
     Congressional Record;
       (4) there be committee referral and action on the proposed 
     regulations by resolution in each House, concurrent 
     resolution, or by joint resolution; and
       (5) final publication of the approved regulations in the 
     Congressional Record, with an effective date prescribed in 
     the final publication.
       For more detail, please reference the text of section 1384. 
     This Notice of Proposed Rulemaking is step (1) of the outline 
     set forth above.
     Are these proposed substantive regulations also recommended 
         by OCWR's Executive Director, the Deputy Executive 
         Director for the Senate, and the Deputy Executive 
         Director for the House of Representatives?
       As required by section 1384(b)(1), the substance of these 
     regulations is also recommended by the Executive Director, 
     the Deputy Executive Director for the Senate, and the Deputy 
     Executive Director for the House of Representatives.
     Has the Board of Directors previously proposed substantive 
         regulations implementing these rights and protections 
         pursuant to section 1316b?
       No.
     What is the approach taken by these proposed substantive 
         regulations?
       The Board will follow the procedure as enumerated above and 
     as required by statute to ensure that the regulations 
     contemplate and reflect the practices and policies particular 
     to the legislative branch.
     What responsibilities would employing offices have in 
         effectively implementing these regulations?
       Employing offices have the responsibility of ensuring that 
     their hiring announcements and hiring processes comply with 
     the prohibition against requesting criminal history record 
     information prior to making a conditional offer of 
     employment, as required by these regulations and the FCA more 
     generally.
     Are there substantive differences in the proposed regulations 
         for the House of Representatives, the Senate, and the 
         other employing offices?
       No. The Board of Directors has identified no good cause for 
     varying the text of these regulations. Therefore, if these 
     regulations are approved as proposed, there will be one text 
     applicable to all employing offices and covered employees.
     Are these proposed substantive regulations available to 
         persons with disabilities in an alternate format?
       This Notice of Proposed Rulemaking is available on the 
     OCWR's website, www.ocwr.gov, which is compliant with Section 
     508 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. 
     Sec. 794d. This Notice can also be made available in large 
     print, Braille, or other alternative format. Requests for 
     this Notice in an alternative format should be made to the 
     Office of Congressional Workplace Rights, 202-724-9250 
     (voice); 202-426-1913 (fax); or ADA[email protected] (e-mail).
     30 Day Comment Period Regarding the Proposed Regulations

     How long do I have to submit comments regarding the proposed 
         regulations?
       Interested parties may submit comments regarding OCWR's 
     proposed regulations set forth in this Notice for a period of 
     thirty (30) days following the date of the appearance of this 
     Notice in the Congressional Record.
     How do I submit comments?
       Comments must be made in writing to the Executive Director, 
     Office of Congressional

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     Workplace Rights, via e-mail at [email protected].
     Am I allowed to view copies of submitted comments by others?
       Yes. Copies of submitted comments will be available for 
     review on the Office's website at www.ocwr.gov.
 Supplementary Information:
       The Congressional Accountability Act of 1995, PL 104-1, was 
     enacted into law on January 23, 1995, and amended on December 
     21, 2018, by the Congressional Accountability Act of 1995 
     Reform Act. The CAA, as amended, applies the rights and 
     protections of numerous federal labor and employment statutes 
     to covered employees and employing offices within the 
     legislative branch of the federal government. Included among 
     those rights are the protections provided to applicants 
     regarding their criminal history record information in 
     section 207 of the CAA. These protections are the subject of 
     these regulations.
       Section 301 of the CAA (2 U.S.C. Sec. 1381) establishes the 
     Office of Congressional Workplace Rights as an independent 
     office within the legislative branch.
     More Detailed Discussion of the Text of the Proposed 
         Regulations
       The Board proposes these substantive regulations with 
     minimal changes from OPM's regulations. The Board made 
     numerous editorial changes necessitated by adaptation to the 
     legislative branch, e.g., ``employing office'' for 
     ``agency,'' or for consistency with the CAA, e.g., ``claim'' 
     for ``complaint.'' The Board relied extensively on section 
     1316b(d), which requires that these regulations be the same 
     as the substantive regulation promulgated by the Director of 
     OPM unless it determines, for good cause shown and stated 
     together with the regulation, that a modification of such 
     regulations would be more effective for implementation of the 
     rights and protections under section 1316b. Where the Board 
     determined that good cause existed to require a modification, 
     it so modified the regulations.
     Introduction to the Regulations under the Fair Chance to 
         Compete for Jobs Act of 2019 General Provisions

     The Purpose of FCA
       The FCA, as applied by the CAA, protects job applicants in 
     the legislative branch by prohibiting employing offices from 
     inquiring into an applicant's criminal history record 
     information prior to a conditional offer of employment. The 
     FCA, as applied by the CAA, provides that employees who 
     inquire into an applicant's criminal history record 
     information in a manner that violates the FCA may be subject 
     to discipline including suspensions from employment and 
     fines.
       The FCA, as applied by the CAA, provides that applicants 
     are to rely upon the procedures set forth in subchapter IV of 
     the CAA. As a result, OCWR's procedures will differ from 
     those contained in part 754 of the OPM regulations. The FCA, 
     as applied by the CAA, does not provide for civil actions or 
     judicial review of administrative determinations.
     OPM Regulations
       Section 1316b(d)(2) requires the Board to promulgate 
     substantive regulations for the legislative branch. Congress 
     required such regulations to be:

     the same as substantive regulations issued by the Director of 
     [OPM] . . . 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 [the FCA].

       OPM's regulations implementing the FCA became effective on 
     October 1, 2023. OPM's regulations consist, in part, of minor 
     amendments acknowledging application of the FCA to five parts 
     of title 5 of the Code of Federal Regulations: parts 302 
     (``Employment in the Excepted Service''), 317 (``Employment 
     in the Senior Executive Service''), 319 (``Employment in the 
     Senior-Level and Scientific and Professional Positions''), 
     330 (``Recruitment, Selection, and Placement (General)''), 
     and 731 (``Suitability''). OPM's regulations also create two 
     new parts of title 5 of the Code of Federal Regulations, 
     parts 754 (``Complaint Procedures, Adverse Actions, and 
     Appeals for Criminal History'') and 920 (``Timing of Criminal 
     History Inquiries Prior to Conditional Offer''). Part 754 
     sets forth procedures for processing of complaints regarding 
     violations of the FCA. Part 920 contains substantive 
     regulations implementing the FCA.
     Section-by-Section Analysis

     Parts 302, 317, and 319
       OPM made additions to parts 302, 317, and 319 of title 5 of 
     the Code of Federal Regulations to incorporate the 
     requirements of the FCA into existing regulations governing 
     the excepted service, senior executive service, and ``senior-
     level and scientific and professional positions,'' 
     respectively. Since there are no existing regulations in the 
     legislative branch parallel to those OPM regulations, the 
     Board found good cause not to propose parallel regulations.
     Parts 330 and 731
       Parts 330 and 731 relate to suitability of applicants for 
     employment. The suitability provisions of title 5 do not 
     apply in the legislative branch. The Board has therefore 
     found good cause not to propose parallel regulations.
     Part 754
       The FCA, in section 9202(c)(2), requires that OPM adopt 
     substantive regulations. In addition, section 9203(2) directs 
     OPM to ``establish and publish procedures under which an 
     applicant for an appointment to a position in the civil 
     service may submit a complaint, or any other information, 
     regarding compliance with 5 U.S.C. Sec. 9202.'' OPM, citing 
     its general authority to promulgate regulations under 5 
     U.S.C. Sec. 1103(a), created a new 5 CFR part 754 to 
     implement the complaint procedure requirements of the FCA. 
     See Fair Chance to Compete for Jobs, 87 Fed. Reg. 24885-01, 
     24887 (April 27, 2022).
       The Board has found good cause not to adopt part 754 for 
     use in the legislative branch. Part 754 of OPM's regulations 
     is entirely procedural in nature. As such, it is outside the 
     scope of Congress's mandate that OCWR adopt substantive 
     regulations that are the same as substantive regulations 
     issued by the Director of OPM except upon a finding of good 
     cause. Rather than requiring the Board to follow OPM's 
     procedural regulations and as Congress provided in section 
     1316b(c)(2), OCWR must process FCA claims using subchapter IV 
     of the CAA (2 U.S.C. Sec. 1401 et seq.). OCWR has established 
     interim procedures and will amend its Procedural Rules to 
     implement procedures for FCA claims in the legislative branch 
     pursuant to section 1383 of the CAA.
     Part 920
       OPM adopted 5 CFR, part 920 to set forth general rules 
     regarding the FCA. The Board found good cause to modify part 
     920 to adapt it from the executive branch to the legislative 
     branch.
     Subpart A
       Subpart A of part 920 of OPM's regulations contains general 
     provisions that are applicable to the timing of criminal 
     history inquiries. Section 920.101 contains definitions 
     necessary for the administration of this part.
       For section 920.101, the Board has found good cause to 
     modify the definitions. The Board proposes omitting the 
     definition of ``agency'' and replacing it with a definition 
     of ``employing office'' based on sections 1301(a)(9) and 
     1301(b) of the CAA.
       The Board proposes omitting the definition of ``appointing 
     authority.'' Section 9201(2) of the FCA defines ``appointing 
     authority'' as ``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.'' That 
     definition is inapplicable to the legislative branch. 
     Moreover, since liability under the FCA attaches to 
     individual employees, regardless of whether they have hiring 
     authority, the term ``appointing authority'' is not essential 
     to the application of the FCA in the legislative branch.
       The Board proposes modifying the definition of 
     ``conditional offer'' to include a CAA-specific definition of 
     the term. Section 1316b(b)(1)(B) defines ``conditional 
     offer'' as ``an offer of employment as a covered employee 
     that is conditioned upon the results of a criminal history 
     inquiry.''
       The Board proposes replacing the definition of ``employee'' 
     with a definition of ``covered employee'' based upon sections 
     1301(a)(3) and 1301(b) of the CAA.
       The Board proposes omitting the definitions of ``political 
     appointment,'' as well as section 920.201(b)(2), which 
     exempts applicants for political appointments from FCA 
     coverage. None of the definitions of ``political 
     appointment'' apply to covered employees in the legislative 
     branch. The Board proposes this omission as opposed to the 
     creation of an alternative definition or definitions of that 
     term. Neither the FCA nor the CAA provides a basis for the 
     Board to create an alternative definition of ``political 
     appointment'' for the legislative branch or to exempt from 
     the FCA's coverage employees falling within the scope of such 
     a definition.
     Subpart B
       Subpart B of OPM's regulations addresses when inquiries 
     into an applicant's criminal history record information may 
     be made. Section 920.201(a) states that an agency cannot 
     request an applicant's criminal history record information 
     orally or in written form prior to giving a conditional offer 
     of employment. This includes the following points in the 
     recruitment and hiring process: (1) initial application, 
     through a job opportunity announcement on USAJOBS, or through 
     any recruitment/public notification such as on the agency's 
     website/social media, etc.; (2) after an agency receives an 
     initial application through its back-end system, through 
     shared service providers/recruiters/contractors, or orally or 
     via email and other forms of electronic notification; and (3) 
     prior to, during, or after a job interview. This prohibition 
     applies to agency personnel, shared service providers, 
     contractors involved in the agency's recruitment and hiring 
     process, automated systems (specific to the agency or 
     governmentwide), etc. Other than minor amendments to employ 
     terminology used in the legislative branch, the Board 
     proposes no changes to section 920.201(a).
       Section 920.201(b) of OPM's regulations tracks the 
     requirements of 5 U.S.C. Sec. 9202(b) and (c)(1), allowing 
     inquiries into a job applicant's criminal history, prior to 
     making a conditional job offer to that applicant, if doing so 
     is otherwise required by law, if the position requires a 
     determination of eligibility for access to classified 
     information or employment in a sensitive position (designated 
     under the Position Designation System issued by OPM and the 
     Office of Director of National Intelligence), or eligibility 
     for acceptance or retention in the armed forces

[[Page S4094]]

     (as described in 5 U.S.C. Sec. 9101(b)(1)(A)(i), (ii), or 
     (iii)) such as for dual-status military technicians, or if it 
     is a Federal law enforcement officer position (as defined in 
     section 115(c) of title 18).
       Paragraph (b) also makes an exception for applicants for 
     political appointments. Pre-employment criminal history 
     screening may be required for these positions prior to a 
     conditional offer of employment, because of the utmost trust 
     and discretion required in these positions. Paragraph (b) 
     also describes other circumstances for which OPM may grant 
     exceptions in response to a request from a hiring agency.
       The Board proposes modifying subparagraphs (b)(1)(iii), 
     (b)(1)(iv), and (b)(2), which relate to exceptions from the 
     FCA, by omitting them. Subparagraph (1)(iii) relates to 
     positions that have been designated under the Position 
     Designation System as sensitive. The Board is aware of no 
     positions in covered employing offices that would be subject 
     to such designation. Similarly, the Board is unaware of any 
     dual-status military technicians in the legislative branch, 
     thereby obviating the need for subparagraph (1)(iv). The 
     Board is also proposing to omit subparagraph (b)(2), since, 
     as was noted above, the Board lacks the authority to create a 
     legislative branch-specific definition of ``political 
     appointment.''
       Paragraph (c) adds the requirement that agencies notify 
     applicants of the prohibition in job opportunity 
     announcements and on agency websites/portals for positions 
     that do not require a posting on USAJOBS, such as excepted 
     service positions, in addition to information about agency 
     complaint processes as required by part 754 of title 5 of the 
     Code of Federal Regulations. Other than minor amendments to 
     employ terminology used in the legislative branch, the Board 
     proposes no changes to section 920.201(c).
       Section 920.202 of OPM's regulations defines what 
     constitutes a violation of the FCA.
       Paragraph (a) defines a violation as any oral or written 
     request for criminal history information prior to a 
     conditional job offer. Paragraph (b) explains that a 
     violation occurs when a prohibited inquiry is made by agency 
     personnel, including when they act through shared service 
     providers, contractors involved in the agency's recruitment/
     hiring process, or automated systems (specific to the agency 
     or governmentwide).
       Section 920.202 of OPM's regulations also outlines several 
     situations in which a violation could occur. An agency cannot 
     request criminal history information upon the initial 
     application, through a job opportunity announcement on 
     USAJOBS, or through any recruitment/public notification such 
     as on the agency's website/social media. An agency also 
     cannot request this information after an agency receives an 
     initial application through its back-end system, through 
     shared service providers/recruiters/contractors, or orally or 
     via email and other forms of electronic notification prior to 
     giving the conditional offer. Additionally, the agency cannot 
     request the information verbally prior to, during, or after a 
     job interview prior to giving a conditional offer. Other than 
     minor amendments to employ terminology used in the 
     legislative branch, the Board proposes no changes to sections 
     920.202(a) and (b).
       Paragraph (c) provides that when a prohibited request, 
     announcement, or communication is publicly posted or 
     simultaneously distributed to multiple applicants, it 
     constitutes a single violation. This resolves an ambiguity in 
     the language of 5 U.S.C. Sec. 9202(a) and prevents the absurd 
     and unintended outcome of thousands of violations and 
     complaints arising from a single job opportunity announcement 
     on USAJOBS. Other than minor amendments to employ terminology 
     used in the legislative branch, the Board proposes no changes 
     to section 920.202(c).
       Paragraph (d) of section 920.202 of OPM's regulations 
     explains that any violation as defined in paragraph (a) is 
     subject to the complaint and penalty procedures in part 754 
     of title 5 of the Code of Federal Regulations. The Board 
     proposes modifying paragraph (d) to replace reference to part 
     754 with reference to subchapter IV of the CAA and OCWR's 
     Procedural Rules.
     PART 920--TIMING OF CRIMINAL HISTORY INQUIRIES

     Subpart A--General Provisions
Sec.
920.101  Definitions.
920.102  Positions covered by Fair Chance Act regulations.
     Subpart B--Timing of Inquiries Regarding Criminal History
920.201  Limitations on criminal history inquiries.
920.202  Violations.
     Sec. 920.101 Definitions.
       For the purpose of this part:
       Employing office means:
       (1) The personal office of a Member of the House of 
     Representatives or of a Senator;
       (2) A committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) Any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       (4) The Office of Congressional Accessibility Services, the 
     United States Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of 
     Congressional Workplace Rights, the Office of Technology 
     Assessment, the Library of Congress, the Stennis Center for 
     Public Service, the United States Commission on International 
     Religious Freedom, the U.S.-China Economic and Security 
     Review Commission, Congressional-Executive Commission on 
     China, and the Commission on Security and Cooperation in 
     Europe.
       Applicant means a person who has applied to an employing 
     office under its procedures for accepting applications 
     consistent with governmentwide regulations, as applicable.
       Conditional offer means an offer of employment as a covered 
     employee that is conditioned upon the results of a criminal 
     history inquiry.
       Covered employee means any employee of--(1) the House of 
     Representatives; (2) the Senate; (3) the Office of 
     Congressional Accessibility Services; (4) the United States 
     Capitol Police; (5) the Congressional Budget Office; (6) the 
     Office of the Architect of the Capitol; (7) the Office of the 
     Attending Physician; (8) the Office of Congressional 
     Workplace Rights; (9) the Office of Technology Assessment; 
     (10) the Library of Congress; (11) the Stennis Center for 
     Public Service; (12) the United States Commission on 
     International Religious Freedom; (13) the U.S.-China Economic 
     and Security Review Commission; (14) the Congressional-
     Executive Commission on China; or (15) the Commission on 
     Security and Cooperation in Europe.
       Criminal history record information--(1) Has the meaning 
     given the term in section 9101(a) of title 5, United States 
     Code; and
       (2) Includes any information described in the first 
     sentence of section 9101(a)(2) of title 5, United States 
     Code, that has been sealed or expunged pursuant to law; and
       (3) 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).
     Sec. 920.102 Positions covered by Fair Chance Act 
         regulations.
       (a) Positions covered. Except as provided in paragraph (b), 
     this part applies to all positions in any employing office.
       (b) Exempt positions. For purposes of this part an exempt 
     position is any position for which an employing office is 
     required by statutory authority to make inquiries into an 
     applicant's criminal history prior to extending an offer of 
     employment to the applicant.
     Subpart B--Timing of Inquiries Regarding Criminal History

     Sec. 920.201. Limitations on criminal history inquiries.
       (a) Applicability. An employee of an employing office may 
     not request, in oral or written form (including through the 
     Declaration for Federal Employment (Office of Personnel 
     Management Optional Form 306) or any similar successor form, 
     the USAJOBS internet website, or any other electronic means) 
     that an applicant for employment with an employing office 
     disclose criminal history record information regarding the 
     applicant before the employing office extends a conditional 
     offer to the applicant. This includes the following points in 
     the recruitment and hiring process:
       (1) Initial application, through a job opportunity 
     announcement on USAJOBS, or through any recruitment/public 
     notification such as on the employing office's website/social 
     media, etc.;
       (2) After an employing office receives an initial 
     application through its back-end system, through shared 
     service providers/recruiters/contractors, or orally or via 
     email and other forms of electronic notification; and
       (3) Prior to, during, or after a job interview. This 
     prohibition applies to employing office personnel, including 
     when they act through shared service providers, contractors 
     (acting on behalf of the employing office) involved in the 
     employing office's recruitment and hiring process, or 
     automated systems (specific to the employing office or 
     governmentwide).
       (b) Exceptions for certain positions. (1) The prohibition 
     under paragraph (a) of this section shall not apply with 
     respect to an applicant for an appointment to a position:
       (i) Which is exempt in accordance with Sec. 920.102(b);
       (ii) That requires a determination of eligibility for 
     access to classified information;
       (iii) Is a Federal law enforcement officer position meeting 
     the definition in section 115(c) of title 18, U.S. Code.
       (c) Notification to applicants. Each employing office must 
     publicize to applicants the prohibition described in 
     paragraph (a) of this section in job opportunity 
     announcements and on employing office websites/portals for 
     positions that do not require a posting on USAJOBS.
     Sec. 920.202. Violations.
       (a) An employing office employee may not request, orally or 
     in writing, information about an applicant's criminal history 
     prior to making a conditional offer of employment to that 
     applicant unless the position is exempted or excepted in 
     accordance with 
     Sec. 920.201(b).
       (b) A violation (or prohibited action) as defined in 
     paragraph (a) of this section occurs when employing office 
     personnel, shared service providers, or contractors (acting 
     on behalf of the employing office) involved in the employing 
     office's recruitment and hiring process, either personally or 
     through

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     automated systems (specific to the employing office or 
     governmentwide), make oral or written requests prior to 
     giving a conditional offer of employment--
       (1) In a job opportunity announcement on USAJOBS or in any 
     recruitment/public notification such as on the employing 
     office's website or social media;
       (2) In communications sent after an employing office 
     receives an initial application, through an employing 
     office's talent acquisition system, shared service providers/
     recruiters/contractors, orally or in writing (including via 
     email and other forms of electronic notification); or
       (3) Prior to, during, or after a job interview or other 
     applicant assessment.
       (c) When a prohibited request, announcement, or 
     communication is publicly posted or simultaneously 
     distributed to multiple applicants, it constitutes a single 
     violation.
       (d) Any violation as defined in paragraph (a) of this 
     section is subject to the claim and penalty procedures under 
     subchapter IV of title 2 (other than section 1407 or 1408 of 
     title 2, or a provision of that subchapter that permits a 
     person to obtain a civil action or judicial review) and the 
     OCWR Procedural Rules, consistent with these regulations.

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