[House Report 116-380]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-380
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
FAIR CHANCE ACT
_______
January 24, 2020.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mrs. Carolyn B. Maloney (NY), from the Committee on Oversight and
Reform, submitted the following
R E P O R T
[To accompany H.R. 1076]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Reform, to whom was referred
the bill (H.R. 1076) 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, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Summary and Purpose of the Legislation........................... 9
Background and Need for Legislation.............................. 9
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 10
Statement of General Performance Goals and Objectives............ 10
Legislative History.............................................. 10
Hearings......................................................... 11
Committee Consideration.......................................... 11
Roll Call Votes.................................................. 11
Explanation of Amendments........................................ 14
Application of Law to the Legislative Branch..................... 14
Duplication of Federal Programs.................................. 14
Federal Advisory Committee Act................................... 14
Unfunded Mandates Statement...................................... 15
Earmark Identification........................................... 15
Committee Estimate............................................... 15
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 15
Section-by-Section Analysis...................................... 17
Changes in Existing Law Made by the Bill, as Reported............ 21
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Chance to Compete for Jobs Act of
2019'' 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; 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 subparagraphs (B) and
(C), 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 (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 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 Certain Positions.--
``(1) In general.--The prohibition under subsection (a) shall
not apply with respect to an applicant for an appointment to a
position--
``(A) that requires a determination of eligibility
described in clause (i), (ii), or (iii) of section
9101(b)(1)(A);
``(B) as a Federal law enforcement officer (as
defined in section 115(c) of title 18); or
``(C) identified by the Director of the Office of
Personnel Management in the regulations issued under
paragraph (2).
``(2) Regulations.--
``(A) Issuance.--The Director of the Office of
Personnel Management shall issue regulations
identifying additional positions with respect to which
the prohibition under subsection (a) shall not apply,
giving due consideration to positions that involve
interaction with minors, access to sensitive
information, or managing financial transactions.
``(B) Compliance with civil rights laws.--The
regulations issued under subparagraph (A) shall--
``(i) be consistent with, and in no way
supersede, restrict, or limit the application
of title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e et seq.) or other relevant
Federal civil rights laws; and
``(ii) ensure that all hiring activities
conducted pursuant to the regulations are
conducted in a manner consistent with relevant
Federal civil rights laws.
``Sec. 9203. Agency policies; 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 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.--The Congressional Accountability Act of 1995
(2 U.S.C. 1301 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.--
``(A) In general.--Except as provided in subparagraph
(B), 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.
``(B) Conditional offer.--For purposes of applying
that section 9202 under subparagraph (A), a reference
in that section 9202 to a conditional offer shall be
considered to be an offer of employment as a covered
employee that is conditioned upon the results of a
criminal history inquiry.
``(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 section 407 or 408, or a provision of this title that
permits a person to obtain a civil action or judicial review),
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 2019,
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 2019 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 amendments.--
(A) The table of contents in section 1(b) of the
Congressional Accountability Act of 1995 (Public Law
104-1; 109 Stat. 3) is amended--
(i) by redesignating the item relating to
section 207 as the item relating to section
208; and
(ii) by inserting after the item relating to
section 206 the following new item:
``Sec. 207. Rights and protections relating to criminal history
inquiries.''.
(B) Section 62(e)(2) of the Internal Revenue Code of
1986 is amended by striking ``or 207'' and inserting
``207, or 208''.
(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; 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 2019, 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 2019 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.--Chapter 47 of title 41, United States Code,
is amended by adding at the end the following new section:
``Sec. 4714. 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 certain positions.--
``(A) In general.--The prohibition under paragraph
(1) does not apply with respect to--
``(i) a contract that requires an individual
hired under the contract to access classified
information or to have sensitive law
enforcement or national security duties; or
``(ii) a position that the Administrator of
General Services identifies under the
regulations issued under subparagraph (B).
``(B) Regulations.--
``(i) Issuance.--Not later than 16 months
after the date of enactment of the Fair Chance
to Compete for Jobs Act of 2019, the
Administrator of General Services, in
consultation with the Secretary of Defense,
shall issue regulations identifying additional
positions with respect to which the prohibition
under paragraph (1) shall not apply, giving due
consideration to positions that involve
interaction with minors, access to sensitive
information, or managing financial
transactions.
``(ii) Compliance with civil rights laws.--
The regulations issued under clause (i) shall--
``(I) be consistent with, and in no
way supersede, restrict, or limit the
application of title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et
seq.) or other relevant Federal civil
rights laws; and
``(II) ensure that all hiring
activities conducted pursuant to the
regulations are conducted in a manner
consistent with relevant Federal civil
rights laws.
``(b) 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) 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 remedies 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; and
``(C) suspending payment under the contract for which
the applicant was being considered until the contractor
demonstrates compliance with this section.
``(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 chapter 47
of title 41, United States Code, is amended by adding at the
end the following new item:
``4714. Prohibition on criminal history inquiries by contractors prior
to conditional offer.''.
(3) Effective date.--Section 4714 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) of this Act.
(b) Defense Contracts.--
(1) In general.--Chapter 137 of title 10, United States Code,
is amended by inserting after section 2338 the following new
section:
``Sec. 2339. 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 certain positions.--
``(A) In general.--The prohibition under paragraph
(1) does not apply with respect to--
``(i) a contract that requires an individual
hired under the contract to access classified
information or to have sensitive law
enforcement or national security duties; or
``(ii) a position that the Secretary of
Defense identifies under the regulations issued
under subparagraph (B).
``(B) Regulations.--
``(i) Issuance.--Not later than 16 months
after the date of enactment of the Fair Chance
to Compete for Jobs Act of 2019, the Secretary
of Defense, in consultation with the
Administrator of General Services, shall issue
regulations identifying additional positions
with respect to which the prohibition under
paragraph (1) shall not apply, giving due
consideration to positions that involve
interaction with minors, access to sensitive
information, or managing financial
transactions.
``(ii) Compliance with civil rights laws.--
The regulations issued under clause (i) shall--
``(I) be consistent with, and in no
way supersede, restrict, or limit the
application of title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et
seq.) or other relevant Federal civil
rights laws; and
``(II) ensure that all hiring
activities conducted pursuant to the
regulations are conducted in a manner
consistent with relevant Federal civil
rights laws.
``(b) 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) 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 remedies 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; and
``(C) suspending payment under the contract for which
the applicant was being considered until the contractor
demonstrates compliance with this section.
``(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 2339(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) of this
Act.
(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 2338 the following new item:
``2339. 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 4714 of title 41, United States Code, and
section 2339 of title 10, United States Code, as added by this
section.
(2) Consistency with office of personnel management
regulations.--The Federal Acquisition Regulatory Council shall
revise the Federal Acquisition Regulation under paragraph (1)
to be consistent 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.--The Director of the Bureau of Justice
Statistics, in coordination with the Director of the Bureau of the
Census, shall--
(1) not later than 180 days after the date of enactment of
this Act, design and initiate 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 employment and earnings of covered
individuals who are denied employment, including the
reasons for the denials; and
(2) not later than 2 years after the date of enactment of
this Act, and every 5 years thereafter, 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 Reform of the
House of Representatives; and
(D) the Committee on Education and Labor of the House
of Representatives.
SEC. 5. DETERMINATION OF BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of complying with
the Statutory Pay-As-You-Go Act of 2010, shall be determined by
reference to the latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for this Act, submitted for printing in the Congressional
Record by the Chairman of the House Budget Committee, provided that
such statement has been submitted prior to the vote on passage.
Summary and Purpose of Legislation
The Fair Chance Act would help formerly-incarcerated
individuals obtain non-sensitive federal jobs by prohibiting
federal agencies and contractors from asking about the criminal
histories of job applicants until after making conditional
offers of employment. The bill does not prohibit a criminal
history inquiry entirely. It sets a standard for when the
inquiry may be made. The bill includes exceptions for positions
related to law enforcement and national security duties,
positions requiring access to classified information, and
positions for which access to criminal history information is
otherwise required by law.\1\
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\1\Committee on Oversight and Reform, Booker, Cummings, Johnson,
Issa, Members of Congress Introduce Bipartisan Legislation to Give
Formerly Incarcerated a Fair Chance at Federal Employment (Sept. 10,
2015) (online at https://oversight.house.gov/news/press-releases/
booker-cummings-johnson-issa-members-of-congress-introduce-bipartisan).
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Background and Need for Legislation
The Fair Chance Act is already the current practice of the
federal government. Pursuant to a Presidential Memorandum
issued by President Barack Obama in 2015, the Office of
Personnel Management finalized a rule in December 2016 to ``ban
the box'' for hiring federal employees.\2\ The bill extends
this practice to federal contractors and the legislative and
judicial branches of the federal government.
---------------------------------------------------------------------------
\2\Office of Personnel Management, Recruitment, Selection, and
Placement (General) and Suitability, 81 Fed. Reg. 86555 (Dec. 1, 2016)
(5 CFR 330; 5 CFR 731).
---------------------------------------------------------------------------
Studies have shown that ban the box policies in the public
sector substantially increase the odds of employment for
formerly incarcerated individuals.\3\ There have been
``dramatic improvements in the employment of those with
convictions'' as a result of ban the box policies, including a
33% increase in employment for formerly incarcerated
individuals in Washington, D.C.\4\ Studies have also shown that
employment is the single greatest factor in reducing recidivism
among formerly incarcerated individuals.\5\
---------------------------------------------------------------------------
\3\Ban the Box, Convictions, and Public Sector Employment, SSRN
Online (Jan. 28, 2017) (online at papers.ssrn.com/sol3/
papers.cfm?abstract__id=2906893).
\4\Id.
\5\See, e.g., Reentry and the Ties that Bind: An Examination of
Social Ties, Employment, and Recidivism, Justice Quarterly, Vol. 28
Issue 2 (2011) (online at www.tandfonline.com/doi/abs/10.1080/
07418825.2010.498383).
---------------------------------------------------------------------------
Other studies have critiqued ban the box policies for
having unintended consequences. For example, one study suggests
that such policies may have negative impacts on employment
among younger black and Latino men.\6\ The study found that
``black and Hispanic men without college degrees are
significantly less likely to be employed after ``ban the box``
than before''\7\ because employers discriminate more against
these populations when they are not permitted to ask about
criminal backgrounds. An analysis of the study emphasized that
finding fault with ban the box policies, instead of illegal and
racist hiring practices, is the wrong conclusion to draw.\8\
---------------------------------------------------------------------------
\6\``Ban the Box'' Does More Harm than Good, Brookings Institution
(May 31, 2016) (online at www.brookings.edu/opinions/ban-the-box-does-
more-harm-than-good/).
\7\Id.
\8\See, e.g., Racial Profiling in Hiring: A Critique of New ``Ban
the Box'' Studies, National Employment Law Project (Aug. 11, 2016)
(online at www.nelp.org/publication/racial-profiling-in-hiring-a-
critique-of-new-ban-the-box-studies/).
---------------------------------------------------------------------------
In 2017, after reviewing the relevant studies, the Senate
Homeland Security and Governmental Affairs Committee concluded:
These studies do not expose any significant flaws in ban
the box policies. On the contrary, the data gathered confirms
that individuals with criminal records experience higher call
back and employment rates after the introduction of fair chance
hiring practices, which is precisely the intended outcome. The
more concerning revelation for policymakers to consider is the
continued role race and implicit bias play in the hiring
process.\9\
---------------------------------------------------------------------------
\9\Senate Homeland Security and Governmental Affairs Committee,
Fair Chance Act, 115th Cong. (Sept. 25, 2017) (S. Rept. 115-162)
(online at www.congress.gov/bill/115th-congress/senate-bill/842/text).
---------------------------------------------------------------------------
Currently, 33 states and more than 150 cities and counties
have acted to give formerly incarcerated people a fair chance
to secure employment by instituting ban the box policies or
laws.\10\ Of these jurisdictions, 11 states and 17 cities and
counties have extended their laws to include private-sector
entities.\11\ Companies such as Walmart, Koch Industries,
Target, Home Depot, and Bed, Bath & Beyond have also embraced
ban the box policies.\12\
---------------------------------------------------------------------------
\10\Ban the Box: U.S. Cities, Counties, and States Adopt Fair
Hiring Policies, National Employment Law Project (Sept. 25, 2018)
(online at www.nelp.org/publication/ban-the-box-fair-chance-hiring-
state-and-local-guide/).
\11\Id.
\12\Koch Industries to Stop Asking About Job Candidates' Criminal
History, Politico (Apr. 27, 2015) (online at www.politico.com/story/
2015/04/koch-industries-brothers-criminal-history-job-applicants-ban-
the-box-117382).
---------------------------------------------------------------------------
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the previous section.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives of this bill are to prohibit Federal
agencies and contractors from requesting that applicants for
employment disclose criminal history information before they
receive conditional offers of employment, and for other
purposes.
Legislative History
On February 7, 2019, Chairman Elijah Cummings (D-MD)
introduced H.R. 1076, the Fair Chance Act, with Representative
Doug Collins (R-GA). H.R. 1076 was referred to the Committee on
Oversight and Reform, with additional referrals to the
Committee on the Judiciary, the Committee on House
Administration, the Committee on Armed Services, and the
Committee on Education and Labor.
The Subcommittees on Government Operations and Civil Rights
and Civil Liberties held a joint hearing on H.R. 1076 on March
13, 2019. The Committee considered H.R. 1076 at a business
meeting on March 26, 2019, and ordered the bill favorably
reported, as amended, by voice vote.
Senator Cory Booker (D-NJ) and Senator Ron Johnson (R-WI)
introduced S. 387, the Senate companion to H.R. 1076, on
February 7, 2019. The Senate Homeland Security and Governmental
Affairs Committee considered S. 387 at a business meeting on
February 13, 2019, and ordered the bill reported favorably by
voice vote.
In the 115th Congress, Chairman Cummings introduced H.R.
1905, the Fair Chance Act, an identical bill to H.R. 1076.
Hearings
For the purposes of section 103(i) of H. Res. 6 adopted by
the House in the 116th Congress, the Subcommittees on
Government Operations and Civil Rights and Civil Liberties held
a joint hearing on H.R. 1076 on March 13, 2019. The following
witnesses testified: Rep. Doug Collins (R-GA); Senator Cory
Booker (D-NJ); Senator Ron Johnson (R-WI); Ms. Holly Harris,
Executive Director, Justice Action Network; and Ms. Teresa Y.
Hodge, Co-Founder and CEO, R3 Score Technologies, Inc.
Committee Consideration
On March 26, 2019, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported, as amended, by voice vote.
Roll Call Votes
There were two roll call votes during consideration of H.R.
1076:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Explanation of Amendments
During Committee consideration of the bill, Representative
Elijah Cummings (D-MD), the Chairman of the Committee, offered
an Amendment in the Nature of a Substitute, to make technical
corrections to the bill. The Cummings amendment was adopted by
voice vote.
Representative Carol Miller (R-WV) offered an amendment to
the Amendment in the Nature of a Substitute that would exempt
federal contractors from liability for complying with
provisions of the Act. The Miller amendment failed by a
recorded vote of 13-18.
Representative Chip Roy (R-TX) offered an amendment to the
Amendment in the Nature of a Substitute that would rewrite the
disciplinary procedures related to all federal government
employees within the merit system. Representative Gerald
Connolly (D-VA) raised a point of order on the Roy amendment
for lack of germaneness. The Chairman ruled that the amendment
was not germane. Representative Roy appealed the Chairman's
ruling. In response, Representative Wasserman-Schultz moved to
table the appeal of the ruling of the chair. The motion to
table passed by recorded vote of 17-14.
Representative Chip Roy (R-TX) offered an amendment to the
Amendment in the Nature of a Substitute that would remove the
provisions of the bill that apply to federal contractors. The
Roy amendment failed by voice vote.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch when the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill would prohibit legislative branch offices from asking
about the criminal histories of job applicants until after
making conditional offers of employment. The bill does not
relate to access to public services and accommodations.
Duplication of Federal Programs
In accordance with clause 3(c)(5) of rule XIII, no
provision of this bill establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
Federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget Act of
1974, the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 5, 2019.
Hon. Elijah E. Cummings,
Chairman, Committee on Oversight and Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1076, the Fair
Chance Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1076 would amend federal law to prevent federal
employers and contractors from inquiring about a job
applicant's criminal history until after the applicant has
received a conditional job offer. The bill would direct federal
hiring agencies within the executive, legislative, and judicial
branches to issue and implement regulations, policies, and
procedures to ensure compliance. H.R. 1076 also would direct
the Bureau of Justice Statistics to report to the Congress
periodically on the employment statistics of former federal
prisoners.
There is no general prohibition against hiring employees
with a criminal history; however, regulations do prevent their
employment in certain positions. Most of the bill's major
provisions would codify an existing regulation that delays
inquiries into the criminal history of potential employees
until later in the hiring process.\1\ Therefore, CBO estimates
that implementing H.R. 1076 would cost less than $500,000
annually; any spending would be subject to the availability of
appropriated funds.
---------------------------------------------------------------------------
\1\See Recruitment, Selection, and Placement (General) and
Suitability, 81 Fed. Reg. 86555 (January 3, 2017), http://go.usa.gov/
xEf84.
---------------------------------------------------------------------------
Enacting H.R. 1076 could affect direct spending by some
agencies (such as the Tennessee Valley Authority) because they
are authorized to use receipts from fees, the sale of goods,
and other collections to cover their operating costs. Because
most of those agencies can adjust the amounts they collect as
operating costs change, CBO estimates that any net changes in
direct spending by those agencies would be negligible.
H.R. 1076 mandates that employees who violate the bill's
provisions repeatedly would be required to pay civil penalties.
Therefore, H.R. 1076 could increase the collection of civil
fines from federal employees who inquire about an applicant's
criminal history prematurely. Because civil penalties are
recorded in the federal budget as revenues, enacting the
legislation could increase revenues. CBO estimates that such
increases would not be significant in any year.
On March 8, 2019, CBO transmitted a cost estimate for S.
387, the Fair Chance to Compete for Jobs Act of 2019, as
ordered reported by the Senate Committee on Homeland Security
and Governmental Affairs on February 13, 2019. The two bills
are similar and CBO's estimates of the budgetary effects are
the same.
The CBO staff contacts for this estimate are David Hughes
and Matthew Pickford. This estimate was reviewed by H. Samuel
Papenfuss, Assistant Director for Budget Analysis.
Section-by-Section Analysis
Sec. 1. Short title--``Fair Chance to Compete for Jobs Act of 2019'' or
the ``Fair Chance Act.''
Sec. 2. Prohibition on criminal history inquiries prior to conditional
offer for federal employment
Section 2(a). Adds a new Chapter 92 to title 5, U.S.C. as
follows:
Section 9201. Definitions--This section defines key
terms used in the Act.
The Act defines ``agency'' to
include ``executive agency'' as defined in 5
U.S.C. Sec. 105 and the U.S. Postal Service,
the Postal Regulatory Commission, and the
Executive Office of the President.
The Act defines ``appointing
authority'' to be a federal employee in the
executive branch with authority to make civil
service appointments.
The Act defines ``conditional
offer'' to be an offer for a civil service job
that is conditioned on the results of a
criminal history inquiry.
The Act defines ``criminal history
record information'' to be the meaning given
the term in 5 U.S.C. Sec. 9101 and sealed or
expunged criminal convictions and juvenile
convictions.
The Act defines ``suspension'' as
the meaning given in 5 U.S.C. Sec. 7501.
Section 9202. Limitations on Requests for Criminal
History Record Information--This section prohibits
federal agency employers from requesting an applicant's
criminal history information until the applicant
receives a conditional job offer. Exceptions are
included for positions involving classified
information, sensitive national security duties, armed
forces, and law enforcement jobs, and when criminal
history information is legally required prior to a
conditional offer of employment.
Section 9203. Agency Policies; Complaint Procedures--
This section requires the Office of Personnel
Management (OPM) to develop and carry out policies to
assist agency employees to implement the criminal
history inquiry prohibition.
This section also mandates that OPM establish and
publish procedures for a civil service applicant to
file a complaint with OPM related to compliance with
the limitations on requests for criminal history record
information.
Section 9204. Adverse Action--This section
establishes civil penalties against a federal employee
if OPM finds, after notice and a hearing, a violation
of section 9202. The first violation mandates a
warning. Subsequent violations are addressed through
discretionary, graduated penalties that involve a
combination of days of suspension and civil penalties
that individually may not exceed $1,000.00.
Section 9205. Procedures--This section requires OPM
to establish procedures providing for an appeal of an
adverse action, but makes clear that such actions are
not subject to judicial review or the provisions of
chapter 75 of title 5, U.S.C.
Section 9206. Rules of Construction--This section
makes clear that this bill does not authorize an agency
employee or officer to request the disclosure of
juvenile delinquency or sealed or expunged information.
This section also clarifies that this bill does not
create private rights of action.
Section 2(b). Regulations; Effective Date--This section
requires OPM to issue regulations to implement chapter 92 of
title 5 no later than one year after enactment. It also states
that chapter 92 becomes effective two years after the date of
enactment of this enactment.
Section 2(c). Technical and Conforming Amendment--This
section adds the prohibition on criminal history inquiries
prior to conditional offers to the relevant table of chapters.
Section 2(d)(1). Application to Legislative Branch--This
section amends the Congressional Accountability Act to add a
prohibition on criminal history inquiries in a new section on
``Rights and Protections Relating to Criminal History
Inquiries.''
Section 207(a). Definitions--This section defines the
terms ``agency'' and ``criminal history record
information'' and ``suspension'' to have the same
meaning given those terms in 5 U.S.C. Sec. 9201.
Section 207(b). Restrictions on Criminal History
Inquiries--This section prohibits an employee of a
legislative office from requesting a criminal history
record in the same manner federal agency employees are
prohibited from doing so in 5 U.S.C. Sec. 9202. This
section also clarifies that agency rules of
construction (Sec. 9206) apply to legislative offices.
Section 207(c). Remedy--This section mandates that
the remedies for a criminal history inquiry violation
by a legislative office employee are the same as in 5
U.S.C. Sec. 9204 with the exception of how the
suspension is referenced. This section also allows
legislative office applicants to rely on title IV of
the Congressional Accountability Act to obtain relief,
with some exceptions.
Section 207(d). Regulations to Implement Section--
This section requires regulations substantively the
same as those required under section 2(b) to be
promulgated no later than 18 months after enactment.
Section 207(e). Effective Date--This section requires
the modified provisions of the Congressional
Accountability Act to take effect on the same date that
5 U.S.C. Sec. 9202 would apply to agencies.
Section 2(d)(2). Clerical Amendments--Modifies the table of
contents to reflect changes.
Section 2(e). Application to Judicial Branch--28 U.S.C.
Sec. 604 is modified to apply restrictions on criminal history
inquiries to the judicial branch as follows:
Section 604 (i)(1). Definitions--This section defines
the terms ``agency'' and ``criminal history record
information'' to have the meanings given those terms in
5 U.S.C. Sec. 9201. This section defines the term
``covered employee'' to mean employee of the federal
judicial branch other than federal judge, federal
justice, federal magistrate judge, or bankruptcy judge.
This section defines the term ``employing office'' to
mean any office or entity of the federal judicial
branch that employs covered employees.
Section 604(i)(2). Restriction--This section
prohibits a covered employee from requesting that an
applicant disclose criminal history information in the
same manner requests are prohibited under 5 U.S.C.
Sec. 9202.
Section 604(i)(3). Employing Office Policies;
Complaint Procedure--This section requires that the
same complaint procedures for federal agencies apply to
judicial branch offices.
Section 604(i)(4). Adverse Action--This section
requires that the same adverse actions regarding a
violation of the prohibition on criminal history
inquiries that apply to federal agencies would apply to
judicial offices. It also requires that the Director of
the Administrative Office of the U.S. Courts create
procedures for appealing adverse actions, and that
these shall not be subject to judicial review.
Section 604(i)(5). Regulations to be Issued--This
section requires the Director of the Administrative
Office of the U.S. Courts to issue regulations within
18 months after the bill is enacted that are
substantively the same as those required by section
2(b), allowing discretion for some modifications.
Section 604(i)(6). Effective Date--The provisions
relating to the judicial branch shall take effect on
the date 5 U.S.C. Sec. 9202 applies to federal
agencies.
Sec. 3--Prohibition on criminal history inquiries by contractors prior
to conditional offer
Section 3(a)(1). Civilian Agency Contracts In General--Adds
to title 41 related new section 4714.
Section 4714(a). Limitation on Criminal History
Inquiries--This section prohibits agencies from
requiring individuals or sole proprietors to disclose
criminal history information before determining the
apparent awardee for a contract.
It mandates that agencies require, as a condition of
receiving a federal contract or payment, that the
contractor not request criminal history information of
an applicant for a position related to work under the
contract prior to extending a conditional offer to the
applicant.
The section clarifies that the bar against criminal
history inquiries does not apply if access to the
information is otherwise required by law before a
conditional offer for a position, nor does it apply to
positions dealing with classified information or
sensitive national security or law enforcement duties.
Section 4714(b). Complaint Procedures--This section
requires the Administrator of the General Services
Administration to establish and publish complaint
procedures for applicants for positions with federal
contractors related to enforcement of the subsection
limiting contractors' criminal history inquiries.
Section 4714(c). Action for Violations of Prohibition
on Criminal History Inquiries--This section requires
the head of a federal agency to issue a warning to the
contractor for the first violation if the agency head
determines a violation occurred. It also allows for a
range of adverse actions on a discretionary basis for
subsequent violations, including written guidance,
requiring a written response that the contractor will
comply, suspension of payment, termination of the
contract, and referral for debarment.
Section 4713(d). Definitions--This section defines
``conditional offer'' and ``criminal history record
information'' to match 5 U.S.C. Sec. 9101.
Section 3(a)(2). Clerical Amendment--Adds Section 4714 to
the relevant table of sections.
Section 3(a)(3). Effective Date--Ensures Section 4714
applies to those contracts awarded pursuant to solicitations
issued after the effective date of the Act.
Section 3(b)(1). Defense Contracts in General--Adds the
relevant Section 2339 to Chapter 137 of Title 10 of the U.S.
Code.
Section 2339(a). Limitation on Criminal History
Inquiries--This section prohibits the Department of
Defense from requiring individuals or sole proprietors
to disclose criminal history information before
determining the apparent awardee for a contract.
The section mandates that agencies require, as a
condition of receiving a federal contract or payment,
that the contractor not request criminal history
information of an applicant for a position related to
work under the contract prior to extending a
conditional offer to the applicant.
The section clarifies that the bar against criminal
history inquiries does not apply if access to the
information is otherwise required by law before a
conditional offer for a position, nor does it apply to
positions dealing with classified information or
sensitive national security or law enforcement duties.
Section 2339(b). Complaint Procedures--This section
requires the Secretary of Defense to establish and
publish complaint procedures for applicants for
positions with Department of Defense contractors
related to enforcement of the subsection limiting
defense contractors' criminal history inquiries.
Section 2339(c). Action for Violations of Prohibition
on Criminal History Inquiries--This section requires
the Secretary of Defense to issue a warning to the
contractor for the first violation if the Secretary
determines a violation occurred. It also allows for a
range of adverse actions on a discretionary basis for
subsequent violations, including written guidance,
requiring a written response that the contractor will
comply, suspension of payment, termination of the
contract, and referral for debarment.
Section 2339(d). Definitions--This section defines
``conditional offer'' and ``criminal history record
information'' to match 5 U.S.C. Sec. 9101.
Section 3(b)(2). Effective Date--Ensures Section 2339
applies to those contracts awarded pursuant to solicitations
issued after the effective date of the Act.
Section 3(b)(3). Clerical Amendment--Adds Section 2339 to
the table of sections.
Section 3(c). Revisions to Federal Acquisition Regulation--
This section requires that the Federal Acquisition Regulation
be amended within 18 months of the Act's enactment to carry out
both civilian and defense contracting portions of the Act. Such
regulations should be substantively similar to those
promulgated by OPM with limited exceptions.
Sec. 4--Report on employment of individuals formerly incarcerated in
federal prisons
This section requires the U.S. Census Bureau and Bureau of
Justice Statistics to conduct a study and issue a report to
relevant Congressional Committees every five years. The report
and study shall be on employment statistics of formerly
incarcerated individuals and must contain data on individuals
denied employment and demographic data without disclosing
personally-identifiable information.
Sec. 5--Determination of budgetary effects
This section requires compliance with the Statutory Pay-As-
You-Go Act of 2010.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
SUBPART A--General Provisions
Chap. Sec.
Definitions...................................................2101
* * * * * * *
SUBPART H--Access to Criminal History Record Information
Access to Criminal History Records for National Security and Other
Purposes....................................................9101
Prohibition on criminal history inquiries prior to conditional 92.
offer.......................................................9201
SUBPART H--ACCESS TO CRIMINAL HISTORY RECORD INFORMATION
* * * * * * *
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; 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 subparagraphs (B)
and (C), 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 (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 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 Certain Positions.--
(1) In general.--The prohibition under subsection (a)
shall not apply with respect to an applicant for an
appointment to a position--
(A) that requires a determination of
eligibility described in clause (i), (ii), or
(iii) of section 9101(b)(1)(A);
(B) as a Federal law enforcement officer (as
defined in section 115(c) of title 18); or
(C) identified by the Director of the Office
of Personnel Management in the regulations
issued under paragraph (2).
(2) Regulations.--
(A) Issuance.--The Director of the Office of
Personnel Management shall issue regulations
identifying additional positions with respect
to which the prohibition under subsection (a)
shall not apply, giving due consideration to
positions that involve interaction with minors,
access to sensitive information, or managing
financial transactions.
(B) Compliance with civil rights laws.--The
regulations issued under subparagraph (A)
shall--
(i) be consistent with, and in no way
supersede, restrict, or limit the
application of title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et
seq.) or other relevant Federal civil
rights laws; and
(ii) ensure that all hiring
activities conducted pursuant to the
regulations are conducted in a manner
consistent with relevant Federal civil
rights laws.
Sec. 9203. Agency policies; 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 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.
* * * * * * *
----------
CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Congressional Accountability Act of 1995''.
(b) Table of Contents.--The table of contents for this Act is
as follows:
Sec. 1. Short title and table of contents.
TITLE I--GENERAL
Sec. 101. Definitions.
* * * * * * *
Sec. 207. Rights and protections relating to criminal history inquiries.
[Sec. 207.] Sec. 208. Prohibition of intimidation or reprisal.
* * * * * * *
TITLE I--GENERAL
* * * * * * *
SEC. 102. APPLICATION OF LAWS.
(a) Laws Made Applicable.--The following laws shall apply, as
prescribed by this Act, to the legislative branch of the
Federal Government:
(1) The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.).
(2) Title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.).
(3) The Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.).
(4) The Age Discrimination in Employment Act of 1967
(29 U.S.C. 621 et seq.).
(5) The Family and Medical Leave Act of 1993 (29
U.S.C. 2611 et seq.).
(6) The Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.).
(7) Chapter 71 (relating to Federal service labor-
management relations) of title 5, United States Code.
(8) The Employee Polygraph Protection Act of 1988 (29
U.S.C. 2001 et seq.).
(9) The Worker Adjustment and Retraining Notification
Act (29 U.S.C. 2101 et seq.).
(10) The Rehabilitation Act of 1973 (29 U.S.C. 701 et
seq.).
(11) Chapter 43 (relating to veterans' employment and
reemployment) of title 38, United States Code.
(12) Section 9202 of title 5, United States Code.
(b) Laws Which May Be Made Applicable.--
(1) In general.--The Board shall review provisions of
Federal law (including regulations) relating to (A) the
terms and conditions of employment (including hiring,
promotion, demotion, termination, salary, wages,
overtime compensation, benefits, work assignments or
reassignments, grievance and disciplinary procedures,
protection from discrimination in personnel actions,
occupational health and safety, and family and medical
and other leave) of employees, and (B) access to public
services and accommodations.
(2) Board report.--Beginning on December 31, 1996,
and every 2 years thereafter, the Board shall report on
(A) whether or to what degree the provisions described
in paragraph (1) are applicable or inapplicable to the
legislative branch, and (B) with respect to provisions
inapplicable to the legislative branch, whether such
provisions should be made applicable to the legislative
branch. The presiding officers of the House of
Representatives and the Senate shall cause each such
report to be printed in the Congressional Record and
each such report shall be referred to the committees of
the House of Representatives and the Senate with
jurisdiction.
(3) Reports of congressional committees.--Each report
accompanying any bill or joint resolution relating to
terms and conditions of employment or access to public
services or accommodations reported by a committee of
the House of Representatives or the Senate shall--
(A) describe the manner in which the
provisions of the bill or joint resolution
apply to the legislative branch; or
(B) in the case of a provision not applicable
to the legislative branch, include a statement
of the reasons the provision does not apply.
On the objection of any Member, it shall not be in
order for the Senate or the House of Representatives to
consider any such bill or joint resolution if the
report of the committee on such bill or joint
resolution does not comply with the provisions of this
paragraph. This paragraph may be waived in either House
by majority vote of that House.
TITLE II--EXTENSION OF RIGHTS AND PROTECTIONS
PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR
STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION
* * * * * * *
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.--
(A) In general.--Except as provided in
subparagraph (B), 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.
(B) Conditional offer.--For purposes of
applying that section 9202 under subparagraph
(A), a reference in that section 9202 to a
conditional offer shall be considered to be an
offer of employment as a covered employee that
is conditioned upon the results of a criminal
history inquiry.
(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 section 407 or 408,
or a provision of this title that permits a person to
obtain a civil action or judicial review), 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 2019, 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
2019 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.
SEC. [207.] 208. PROHIBITION OF INTIMIDATION OR REPRISAL.
(a) In General.--It shall be unlawful for an employing office
to intimidate, take reprisal against, or otherwise discriminate
against, any covered employee because the covered employee has
opposed any practice made unlawful by this Act, or because the
covered employee has initiated proceedings, made a charge, or
testified, assisted, or participated in any manner in a hearing
or other proceeding under this Act.
(b) Remedy.--The remedy available for a violation of
subsection (a) shall be such legal or equitable remedy as may
be appropriate to redress a violation of subsection (a).
* * * * * * *
----------
INTERNAL REVENUE CODE OF 1986
Subtitle A--Income Taxes
CHAPTER 1--NORMAL TAXES AND SURTAXES
Subchapter B--COMPUTATION OF TAXABLE INCOME
* * * * * * *
PART I--DEFINITION OF GROSS INCOME, ADJUSTED GROSS INCOME, TAXABLE
INCOME, ETC.
* * * * * * *
SEC. 62. ADJUSTED GROSS INCOME DEFINED.
(a) General rule.--For purposes of this subtitle, the term
``adjusted gross income'' means, in the case of an individual,
gross income minus the following deductions:
(1) Trade and business deductions.--The deductions
allowed by this chapter (other than by part VII of this
subchapter) which are attributable to a trade or
business carried on by the taxpayer, if such trade or
business does not consist of the performance of
services by the taxpayer as an employee.
(2) Certain trade and business deductions of
employees.--
(A) Reimbursed expenses of employees.--The
deductions allowed by part VI (section 161 and
following) which consist of expenses paid or
incurred by the taxpayer, in connection with
the performance by him of services as an
employee, under a reimbursement or other
expense allowance arrangement with his
employer. The fact that the reimbursement may
be provided by a third party shall not be
determinative of whether or not the preceding
sentence applies.
(B) Certain expenses of performing artists.--
The deductions allowed by section 162 which
consist of expenses paid or incurred by a
qualified performing artist in connection with
the performances by him of services in the
performing arts as an employee.
(C) Certain expenses of officials.--The
deductions allowed by section 162 which consist
of expenses paid or incurred with respect to
services performed by an official as an
employee of a State or a political subdivision
thereof in a position compensated in whole or
in part on a fee basis.
(D) Certain expenses of elementary and
secondary school teachers.--The deductions
allowed by section 162 which consist of
expenses, not in excess of $250, paid or
incurred by an eligible educator--
(i) by reason of the participation of
the educator in professional
development courses related to the
curriculum in which the educator
provides instruction or to the students
for which the educator provides
instruction, and
(ii) in connection with books,
supplies (other than nonathletic
supplies for courses of instruction in
health or physical education), computer
equipment (including related software
and services) and other equipment, and
supplementary materials used by the
eligible educator in the classroom.
(E) Certain expenses of members of reserve
components of the Armed Forces of the United
States.--The deductions allowed by section 162
which consist of expenses, determined at a rate
not in excess of the rates for travel expenses
(including per diem in lieu of subsistence)
authorized for employees of agencies under
subchapter I of chapter 57 of title 5, United
States Code, paid or incurred by the taxpayer
in connection with the performance of services
by such taxpayer as a member of a reserve
component of the Armed Forces of the United
States for any period during which such
individual is more than 100 miles away from
home in connection with such services.
(3) Losses from sale or exchange of property.--The
deductions allowed by part VI (sec. 161 and following)
as losses from the sale or exchange of property.
(4) Deductions attributable to rents and royalties.--
The deductions allowed by part VI (sec. 161 and
following), by section 212 (relating to expenses for
production of income), and by section 611 (relating to
depletion) which are attributable to property held for
the production of rents or royalties.
(5) Certain deductions of life tenants and income
beneficiaries of property.--In the case of a life
tenant of property, or an income beneficiary of
property held in trust, or an heir, legatee, or devisee
of an estate, the deduction for depreciation allowed by
section 167 and the deduction allowed by section 611.
(6) Pension, profit-sharing, and annuity plans of
self-employed individuals.--In the case of an
individual who is an employee within the meaning of
section 401(c)(1), the deduction allowed by section
404.
(7) Retirement savings.--The deduction allowed by
section 219 (relating to deduction of certain
retirement savings).
(9) Penalties forfeited because of premature
withdrawal of funds from time savings accounts or
deposits.--The deductions allowed by section 165 for
losses incurred in any transaction entered into for
profit, though not connected with a trade or business,
to the extent that such losses include amounts
forfeited to a bank, mutual savings bank, savings and
loan association, building and loan association,
cooperative bank or homestead association as a penalty
for premature withdrawal of funds from a time savings
account, certificate of deposit, or similar class of
deposit.
(10) Alimony.--The deduction allowed by section 215.
(11) Reforestation expenses.--The deduction allowed
by section 194.
(12) Certain required repayments of supplemental
unemployment compensation benefits.--The deduction
allowed by section 165 for the repayment to a trust
described in paragraph (9) or (17) of section 501(c) of
supplemental unemployment compensation benefits
received from such trust if such repayment is required
because of the receipt of trade readjustment allowances
under section 231 or 232 of the Trade Act of 1974 (19
U.S.C. 2291 and 2292).
(13) Jury duty pay remitted to employer.--Any
deduction allowable under this chapter by reason of an
individual remitting any portion of any jury pay to
such individual's employer in exchange for payment by
the employer of compensation for the period such
individual was performing jury duty. For purposes of
the preceding sentence, the term ``jury pay'' means any
payment received by the individual for the discharge of
jury duty.
(15) Moving expenses.--The deduction allowed by
section 217.
(16) Archer MSAs.--The deduction allowed by section
220.
(17) Interest on education loans.--The deduction
allowed by section 221.
(18) Higher education expenses.--The deduction
allowed by section 222.
(19) Health savings accounts.--The deduction allowed
by section 223.
(20) Costs involving discrimination suits, etc..--Any
deduction allowable under this chapter for attorney
fees and court costs paid by, or on behalf of, the
taxpayer in connection with any action involving a
claim of unlawful discrimination (as defined in
subsection (e)) or a claim of a violation of subchapter
III of chapter 37 of title 31, United States Code, or a
claim made under section 1862(b)(3)(A) of the Social
Security Act (42 U.S.C. 1395y(b)(3)(A)). The preceding
sentence shall not apply to any deduction in excess of
the amount includible in the taxpayer's gross income
for the taxable year on account of a judgment or
settlement (whether by suit or agreement and whether as
lump sum or periodic payments) resulting from such
claim.
(21) Attorneys' fees relating to awards to
whistleblowers.--
(A) In general.--Any deduction allowable
under this chapter for attorney fees and court
costs paid by, or on behalf of, the taxpayer in
connection with any award under--
(i) section 7623(b), or
(ii) in the case of taxable years
beginning after December 31, 2017, any
action brought under--
(I) section 21F of the
Securities Exchange Act of 1934
(15 U.S.C. 78u-6),
(II) a State false claims
act, including a State false
claims act with qui tam
provisions, or
(III) section 23 of the
Commodity Exchange Act (7
U.S.C. 26).
(B) May not exceed award.--Subparagraph (A)
shall not apply to any deduction in excess of
the amount includible in the taxpayer's gross
income for the taxable year on account of such
award.
Nothing in this section shall permit the same item to be
deducted more than once. Any deduction allowed by section 199A
shall not be treated as a deduction described in any of the
preceding paragraphs of this subsection.
(b) Qualified performing artist.--
(1) In general.--For purposes of subsection
(a)(2)(B), the term ``qualified performing artist''
means, with respect to any taxable year, any individual
if--
(A) such individual performed services in the
performing arts as an employee during the
taxable year for at least 2 employers,
(B) the aggregate amount allowable as a
deduction under section 162 in connection with
the performance of such services exceeds 10
percent of such individual's gross income
attributable to the performance of such
services, and
(C) the adjusted gross income of such
individual for the taxable year (determined
without regard to subsection (a)(2)(B)) does
not exceed $16,000.
(2) Nominal employer not taken into account.--An
individual shall not be treated as performing services
in the performing arts as an employee for any employer
during any taxable year unless the amount received by
such individual from such employer for the performance
of such services during the taxable year equals or
exceeds $200.
(3) Special rules for married couples.--
(A) In general.--Except in the case of a
husband and wife who lived apart at all times
during the taxable year, if the taxpayer is
married at the close of the taxable year,
subsection (a)(2)(B) shall apply only if the
taxpayer and his spouse file a joint return for
the taxable year.
(B) Application of paragraph (1).--In the
case of a joint return--
(i) paragraph (1) (other than
subparagraph (C) thereof) shall be
applied separately with respect to each
spouse, but
(ii) paragraph (1)(C) shall be
applied with respect to their combined
adjusted gross income.
(C) Determination of marital status.--For
purposes of this subsection, marital status
shall be determined under section 7703(a).
(D) Joint return.--For purposes of this
subsection, the term ``joint return'' means the
joint return of a husband and wife made under
section 6013.
(c) Certain arrangements not treated as reimbursement
arrangements.--For purposes of subsection (a)(2)(A), an
arrangement shall in no event be treated as a reimbursement or
other expense allowance arrangement if--
(1) such arrangement does not require the employee to
substantiate the expenses covered by the arrangement to
the person providing the reimbursement, or
(2) such arrangement provides the employee the right
to retain any amount in excess of the substantiated
expenses covered under the arrangement.
The substantiation requirements of the preceding sentence shall
not apply to any expense to the extent that substantiation is
not required under section 274(d) for such expense by reason of
the regulations prescribed under the 2nd sentence thereof.
(d) Definition; special rules.--
(1) Eligible educator.--
(A) In general.--For purposes of subsection
(a)(2)(D), the term ``eligible educator''
means, with respect to any taxable year, an
individual who is a kindergarten through grade
12 teacher, instructor, counselor, principal,
or aide in a school for at least 900 hours
during a school year.
(B) School.--The term ``school'' means any
school which provides elementary education or
secondary education (kindergarten through grade
12), as determined under State law.
(2) Coordination with exclusions.--A deduction shall
be allowed under subsection (a)(2)(D) for expenses only
to the extent the amount of such expenses exceeds the
amount excludable under section 135, 529(c)(1), or
530(d)(2) for the taxable year.
(3) Inflation adjustment.--In the case of any taxable
year beginning after 2015, the $250 amount in
subsection (a)(2)(D) shall be increased by an amount
equal to--
(A) such dollar amount, multiplied by
(B) the cost-of-living adjustment determined
under section 1(f)(3) for the calendar year in
which the taxable year begins, determined by
substituting ``calendar year 2014'' for
``calendar year 2016'' in subparagraph (A)(ii)
thereof.
Any increase determined under the preceding sentence
shall be rounded to the nearest multiple of $50.
(e) Unlawful discrimination defined.--For purposes of
subsection (a)(20), the term ``unlawful discrimination'' means
an act that is unlawful under any of the following:
(1) Section 302 of the Civil Rights Act of 1991 (42
U.S.C. 2000e-16b).
(2) Section 201, 202, 203, 204, 205, 206, [or 207]
207, or 208 of the Congressional Accountability Act of
1995 (2 U.S.C. 1311, 1312, 1313, 1314, 1315, 1316, or
1317).
(3) The National Labor Relations Act (29 U.S.C. 151
et seq.).
(4) The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.).
(5) Section 4 or 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 623 or 633a).
(6) Section 501 or 504 of the Rehabilitation Act of
1973 (29 U.S.C. 791 or 794).
(7) Section 510 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1140).
(8) Title IX of the Education Amendments of 1972 (20
U.S.C. 1681 et seq.).
(9) The Employee Polygraph Protection Act of 1988 (29
U.S.C. 2001 et seq.).
(10) The Worker Adjustment and Retraining
Notification Act (29 U.S.C. 2102 et seq.).
(11) Section 105 of the Family and Medical Leave Act
of 1993 (29 U.S.C. 2615).
(12) Chapter 43 of title 38, United States Code
(relating to employment and reemployment rights of
members of the uniformed services).
(13) Section 1977, 1979, or 1980 of the Revised
Statutes (42 U.S.C. 1981, 1983, or 1985).
(14) Section 703, 704, or 717 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-2, 2000e-3, or 2000e-16).
(15) Section 804, 805, 806, 808, or 818 of the Fair
Housing Act (42 U.S.C. 3604, 3605, 3606, 3608, or
3617).
(16) Section 102, 202, 302, or 503 of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12112, 12132,
12182, or 12203).
(17) Any provision of Federal law (popularly known as
whistleblower protection provisions) prohibiting the
discharge of an employee, the discrimination against an
employee, or any other form of retaliation or reprisal
against an employee for asserting rights or taking
other actions permitted under Federal law.
(18) Any provision of Federal, State, or local law,
or common law claims permitted under Federal, State, or
local law--
(i) providing for the enforcement of civil
rights, or
(ii) regulating any aspect of the employment
relationship, including claims for wages,
compensation, or benefits, or prohibiting the
discharge of an employee, the discrimination
against an employee, or any other form of
retaliation or reprisal against an employee for
asserting rights or taking other actions
permitted by law.
* * * * * * *
----------
TITLE 28, UNITED STATES CODE
* * * * * * *
PART III--COURT OFFICERS AND EMPLOYEES
* * * * * * *
CHAPTER 41--ADMINISTRATIVE OFFICE OF UNITED STATES COURTS
* * * * * * *
Sec. 604. Duties of Director generally
(a) The Director shall be the administrative officer of the
courts, and under the supervision and direction of the Judicial
Conference of the United States, shall:
(1) Supervise all administrative matters relating to
the offices of clerks and other clerical and
administrative personnel of the courts;
(2) Examine the state of the dockets of the courts;
secure information as to the courts' need of
assistance; prepare and transmit semiannually to the
chief judges of the circuits, statistical data and
reports as to the business of the courts;
(3) Submit to the annual meeting of the Judicial
Conference of the United States, at least two weeks
prior thereto, a report of the activities of the
Administrative Office and the state of the business of
the courts, together with the statistical data
submitted to the chief judges of the circuits under
paragraph (a)(2) of this section, and the Director's
recommendations, which report, data and recommendations
shall be public documents.
(4) Submit to Congress and the Attorney General
copies of the report, data and recommendations required
by paragraph (a)(3) of this section;
(5) Fix the compensation of clerks of court,
deputies, librarians, criers, messengers, law clerks,
secretaries, stenographers, clerical assistants, and
other employees of the courts whose compensation is not
otherwise fixed by law, and, notwithstanding any other
provision of law, pay on behalf of Justices and judges
of the United States appointed to hold office during
good behavior, United States magistrate judges,
bankruptcy judges appointed under chapter 6 of this
title, judges of the District Court of Guam, judges of
the District Court for the Northern Mariana Islands,
judges of the District Court of the Virgin Islands,
bankruptcy judges and magistrate judges retired under
section 377 of this title, and judges retired under
section 373 of this title, who are, aged 65 or over,
any increases in the cost of Federal Employees' Group
Life Insurance imposed after April 24, 1999, including
any expenses generated by such payments, as authorized
by the Judicial Conference of the United States;
(6) Determine and pay necessary office expenses of
courts, judges, and those court officials whose
expenses are by law allowable, and the lawful fees of
United States magistrate judges;
(7) Regulate and pay annuities to widows and
surviving dependent children of justices and judges of
the United States, judges of the United States Court of
Federal Claims, bankruptcy judges, United States
magistrate judges, Directors of the Federal Judicial
Center, and Directors of the Administrative Office, and
necessary travel and subsistence expenses incurred by
judges, court officers and employees, and officers and
employees of the Administrative Office, and the Federal
Judicial Center, while absent from their official
stations on official business, without regard to the
per diem allowances and amounts for reimbursement of
actual and necessary expenses established by the
Administrator of General Services under section 5702 of
title 5, except that the reimbursement of subsistence
expenses may not exceed that authorized by the Director
for judges of the United States under section 456 of
this title;
(8) Disburse appropriations and other funds for the
maintenance and operation of the courts;
(9) Establish pretrial services pursuant to section
3152 of title 18, United States Code;
(10)(A) Purchase, exchange, transfer, distribute, and
assign the custody of lawbooks, equipment, supplies,
and other personal property for the judicial branch of
Government (except the Supreme Court unless otherwise
provided pursuant to paragraph (17)); (B) provide or
make available readily to each court appropriate
equipment for the interpretation of proceedings in
accordance with section 1828 of this title; and (C)
enter into and perform contracts and other transactions
upon such terms as the Director may deem appropriate as
may be necessary to the conduct of the work of the
judicial branch of Government (except the Supreme Court
unless otherwise provided pursuant to paragraph (17)),
and contracts for nonpersonal services providing
pretrial services, agencies, for the interpretation of
proceedings, and for the provision of special
interpretation services pursuant to section 1828 of
this title may be awarded without regard to section
6101(b) to (d) of title 41;
(11) Audit vouchers and accounts of the courts, the
Federal Judicial Center, the offices providing pretrial
services, and their clerical and administrative
personnel;
(12) Provide accommodations for the courts, the
Federal Judicial Center, the offices providing pretrial
services and their clerical and administrative
personnel;
(13) Lay before Congress, annually, statistical
tables that will accurately reflect the business
transacted by the several bankruptcy courts, and all
other pertinent data relating to such courts;
(14) Pursuant to section 1827 of this title,
establish a program for the certification and
utilization of interpreters in courts of the United
States;
(15) Pursuant to section 1828 of this title,
establish a program for the provision of special
interpretation services in courts of the United States;
(16)(A) In those districts where the Director
considers it advisable based on the need for
interpreters, authorize the full-time or part-time
employment by the court of certified interpreters; (B)
where the Director considers it advisable based on the
need for interpreters, appoint certified interpreters
on a full-time or part-time basis, for services in
various courts when he determines that such
appointments will result in the economical provision of
interpretation services; and (C) pay out of moneys
appropriated for the judiciary interpreters' salaries,
fees, and expenses, and other costs which may accrue in
accordance with the provisions of sections 1827 and
1828 of this title;
(17) In the Director's discretion, (A) accept and
utilize voluntary and uncompensated (gratuitous)
services, including services as authorized by section
3102(b) of title 5, United States Code; and (B) accept,
hold, administer, and utilize gifts and bequests of
personal property for the purpose of aiding or
facilitating the work of the judicial branch of
Government, but gifts or bequests of money shall be
covered into the Treasury;
(18) Establish procedures and mechanisms within the
judicial branch for processing fines, restitution,
forfeitures of bail bonds or collateral, and
assessments;
(19) Regulate and pay annuities to bankruptcy judges
and United States magistrate judges in accordance with
section 377 of this title and paragraphs (1)(B) and (2)
of section 2(c) of the Retirement and Survivors'
Annuities for Bankruptcy Judges and Magistrates Act of
1988;
(20) Periodically compile--
(A) the rules which are prescribed under
section 2071 of this title by courts other than
the Supreme Court;
(B) the rules which are prescribed under
section 358 of this title; and
(C) the orders which are required to be
publicly available under section 360(b) of this
title;
so as to provide a current record of such rules and
orders;
(21) Establish a program of incentive awards for
employees of the judicial branch of the United States
Government, other than any judge who is entitled to
hold office during good behavior;
(22) Receive and expend, either directly or by
transfer to the United States Marshals Service or other
Government agency, funds appropriated for the
procurement, installation, and maintenance of security
equipment and protective services for the United States
Courts in courtrooms and adjacent areas, including
building ingress/egress control, inspection of
packages, directed security patrols, and other similar
activities;
(23) Regulate and pay annuities to judges of the
United States Court of Federal Claims in accordance
with section 178 of this title; and
(24) Perform such other duties as may be assigned to
him by the Supreme Court or the Judicial Conference of
the United States.
(b) The clerical and administrative personnel of the courts
shall comply with all requests by the Director for information
or statistical data as to the state of court dockets.
(c) Inspection of court dockets outside the continental
United States may be made through United States officials
residing within the jurisdiction where the inspection is made.
(d) The Director, under the supervision and direction of the
conference, shall:
(1) supervise all administrative matters relating to
the offices of the United States magistrate judges;
(2) gather, compile, and evaluate all statistical and
other information required for the performance of his
duties and the duties of the conference with respect to
such officers;
(3) lay before Congress annually statistical tables
and other information which will accurately reflect the
business which has come before the various United
States magistrate judges, including (A) the number of
matters in which the parties consented to the exercise
of jurisdiction by a magistrate judge, (B) the number
of appeals taken pursuant to the decisions of
magistrate judges and the disposition of such appeals,
and (C) the professional background and qualifications
of individuals appointed under section 631 of this
title to serve as magistrate judge;
(4) prepare and distribute a manual, with annual
supplements and periodic revisions, for the use of such
officers, which shall set forth their powers and
duties, describe all categories of proceedings that may
arise before them, and contain such other information
as may be required to enable them to discharge their
powers and duties promptly, effectively, and
impartially.
(e) The Director may promulgate appropriate rules and
regulations approved by the conference and not inconsistent
with any provision of law, to assist him in the performance of
the duties conferred upon him by subsection (d) of this
section. Magistrate judges shall keep such records and make
such reports as are specified in such rules and regulations.
(f) The Director may make, promulgate, issue, rescind, and
amend rules and regulations (including regulations prescribing
standards of conduct for Administrative Office employees) as
may be necessary to carry out the Director's functions, powers,
duties, and authority. The Director may publish in the Federal
Register such rules, regulations, and notices for the judicial
branch of Government as the Director determines to be of public
interest; and the Director of the Federal Register hereby is
authorized to accept and shall publish such materials.
(g)(1) When authorized to exchange personal property, the
Director may exchange or sell similar items and may apply the
exchange allowance or proceeds of sale in such cases in whole
or in part payment for the property acquired, but any
transaction carried out under the authority of this subsection
shall be evidenced in writing.
(2) The Director hereby is authorized to enter into contracts
for public utility services and related terminal equipment for
periods not exceeding ten years.
(3)(A) In order to promote the recycling and reuse of
recyclable materials, the Director may provide for the sale or
disposal of recyclable scrap materials from paper products and
other consumable office supplies held by an entity within the
judicial branch.
(B) The sale or disposal of recyclable materials under
subparagraph (A) shall be consistent with the procedures
provided in sections 541-555 of title 40 for the sale of
surplus property.
(C) Proceeds from the sale of recyclable materials under
subparagraph (A) shall be deposited as offsetting collections
to the fund established under section 1931 of this title and
shall remain available until expended to reimburse any
appropriations for the operation and maintenance of the
judicial branch.
(4) The Director is hereby authorized:
(A) to enter into contracts for the acquisition of
severable services for a period that begins in one
fiscal year and ends in the next fiscal year to the
same extent as the head of an executive agency under
the authority of section 253l of title 41, United
States Code;
(B) to enter into contracts for multiple years for
the acquisition of property and services to the same
extent as executive agencies under the authority of
section 254c of title 41, United States Code; and
(C) to make advance, partial, progress or other
payments under contracts for property or services to
the same extent as executive agencies under the
authority of section 255 of title 41, United States
Code.
(h)(1) The Director shall, out of funds appropriated for the
operation and maintenance of the courts, provide facilities and
pay necessary expenses incurred by the judicial councils of the
circuits and the Judicial Conference under chapter 16 of this
title, including mileage allowance and witness fees, at the
same rate as provided in section 1821 of this title.
Administrative and professional assistance from the
Administrative Office of the United States Courts may be
requested by each judicial council and the Judicial Conference
for purposes of discharging their duties under chapter 16 of
this title.
(2) The Director of the Administrative Office of the United
States Courts shall include in his annual report filed with the
Congress under this section a summary of the number of
complaints filed with each judicial council under chapter 16 of
this title, indicating the general nature of such complaints
and the disposition of those complaints in which action has
been taken.
(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; 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 2019, 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 2019
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.
* * * * * * *
----------
TITLE 41, UNITED STATES CODE
* * * * * * *
SUBTITLE I--FEDERAL PROCUREMENT POLICY
* * * * * * *
DIVISION C--PROCUREMENT
* * * * * * *
CHAPTER 47--MISCELLANEOUS
Sec.
4701. Determinations and decisions.
* * * * * * *
4714. Prohibition on criminal history inquiries by contractors prior to
conditional offer.
* * * * * * *
Sec. 4714. 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 certain positions.--
(A) In general.--The prohibition under
paragraph (1) does not apply with respect to--
(i) a contract that requires an
individual hired under the contract to
access classified information or to
have sensitive law enforcement or
national security duties; or
(ii) a position that the
Administrator of General Services
identifies under the regulations issued
under subparagraph (B).
(B) Regulations.--
(i) Issuance.--Not later than 16
months after the date of enactment of
the Fair Chance to Compete for Jobs Act
of 2019, the Administrator of General
Services, in consultation with the
Secretary of Defense, shall issue
regulations identifying additional
positions with respect to which the
prohibition under paragraph (1) shall
not apply, giving due consideration to
positions that involve interaction with
minors, access to sensitive
information, or managing financial
transactions.
(ii) Compliance with civil rights
laws.--The regulations issued under
clause (i) shall--
(I) be consistent with, and
in no way supersede, restrict,
or limit the application of
title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et
seq.) or other relevant Federal
civil rights laws; and
(II) ensure that all hiring
activities conducted pursuant
to the regulations are
conducted in a manner
consistent with relevant
Federal civil rights laws.
(b) 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) 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 remedies 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; and
(C) suspending payment under the contract for
which the applicant was being considered until
the contractor demonstrates compliance with
this section.
(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.
* * * * * * *
----------
TITLE 10, UNITED STATES CODE
SUBTITLE A--GENERAL MILITARY LAW
* * * * * * *
PART IV--SERVICE, SUPPLY, AND PROCUREMENT
* * * * * * *
CHAPTER 137--PROCUREMENT GENERALLY
Sec.
2302. Definitions.
* * * * * * *
2339. Prohibition on criminal history inquiries by contractors prior to
conditional offer.
* * * * * * *
Sec. 2339. 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 certain positions.--
(A) In general.--The prohibition under
paragraph (1) does not apply with respect to--
(i) a contract that requires an
individual hired under the contract to
access classified information or to
have sensitive law enforcement or
national security duties; or
(ii) a position that the Secretary of
Defense identifies under the
regulations issued under subparagraph
(B).
(B) Regulations.--
(i) Issuance.--Not later than 16
months after the date of enactment of
the Fair Chance to Compete for Jobs Act
of 2019, the Secretary of Defense, in
consultation with the Administrator of
General Services, shall issue
regulations identifying additional
positions with respect to which the
prohibition under paragraph (1) shall
not apply, giving due consideration to
positions that involve interaction with
minors, access to sensitive
information, or managing financial
transactions.
(ii) Compliance with civil rights
laws.--The regulations issued under
clause (i) shall--
(I) be consistent with, and
in no way supersede, restrict,
or limit the application of
title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et
seq.) or other relevant Federal
civil rights laws; and
(II) ensure that all hiring
activities conducted pursuant
to the regulations are
conducted in a manner
consistent with relevant
Federal civil rights laws.
(b) 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) 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 remedies 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; and
(C) suspending payment under the contract for
which the applicant was being considered until
the contractor demonstrates compliance with
this section.
(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.
* * * * * * *
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