[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Proposed Rules]
[Pages 24885-24903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08975]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 /
Proposed Rules
[[Page 24885]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 302, 317, 319, 330, 731, 754, and 920
RIN 3206-AO00
Fair Chance To Compete for Jobs
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing to amend
rules pertaining to when, during the hiring process, a hiring agency
can request information typically collected during a background
investigation from an applicant for Federal employment. In addition,
OPM is proposing new regulations to establish the requirement for the
timing of collection of criminal history information and for governing
complaint procedures under which an applicant for a position in the
civil service may submit a complaint, or any other information,
relating to compliance by an employee of an agency in reference to the
timing of collection of criminal history information. Finally, the
regulations will outline adverse action procedures that will apply when
it is alleged that an agency employee has violated the requirements and
appeal procedures that will be available from a determination by OPM
adverse to the Federal employee. OPM is proposing these changes to
implement the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance
Act). With some exceptions, the Fair Chance Act prohibits Federal
agencies and Federal contractors acting on their behalf from requesting
that an applicant for Federal employment disclose criminal history
record information before the agency makes a conditional offer of
employment to that applicant. The Fair Chance Act identifies some
positions to which the prohibition shall not apply and requires OPM to
issue regulations identifying additional positions to which the
prohibition shall not apply. It also requires OPM to establish
complaint procedures under which an applicant for a position in the
civil service may submit a complaint, or any other information,
relating to compliance with the Fair Chance Act by an employee of an
agency, establishes minimum penalties and procedures to be followed
before a penalty may be assessed, and requires OPM to establish appeal
procedures available in the event of a determination adverse to the
Federal employee.
DATES: Comments must be received on or before June 27, 2022.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. All submissions received through
the Portal must include the agency name and docket number or Regulation
Identifier Number (RIN) for this proposed rulemaking.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. Before acting on this proposal, OPM will
consider and respond to all comments within the scope of the
regulations that we receive on or before the closing date for comments.
Changes to this proposal may be made in light of the comments we
receive.
FOR FURTHER INFORMATION CONTACT: For questions with respect to 5 CFR
part 754, contact Timothy Curry by email at
[email protected] or by telephone at (202) 606-2930. For
questions with respect to 5 CFR part 731, contact Lisa Loss by email at
[email protected] or by telephone at (202) 606-7017. For questions on all
other parts, contact Mike Gilmore by telephone on (202) 606-2429, by
fax at (202) 606-4430, by TTY at (202) 418-3134, or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Provisions of the Fair Chance Act were incorporated into the
National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-
92), which was signed into law by the President on December 20, 2019.
The Fair Chance Act places limitations on agency requests for criminal
history record information prior to conditional offer of employment. It
also requires a complaint process by which applicants for appointment
to a position in the civil service may submit a complaint, or any other
information, relating to compliance with the requirements of the Fair
Chance Act. Furthermore, the Fair Chance Act establishes requirements
and procedures regarding penalties for violations.
The Existing `Ban the Box' Rule
On December 1, 2016, OPM issued a final rule at 81 FR 86555, that
revised its regulations pertaining to when, during the hiring process,
a hiring agency can request information typically collected during a
background investigation from an applicant for Federal employment. The
changes were to promote compliance with Merit System Principles as well
as the goal of the Federal Interagency Reentry Council and the
Presidential Memorandum of January 31, 2014, ``Enhancing Safeguards to
Prevent the Undue Denial of Federal Employment Opportunities to the
Unemployed and Those Facing Financial Difficulty Through No Fault of
Their Own,'' otherwise known as ``Ban the Box'' rules. As noted by OPM
when it first promulgated the rule, the intent of the rule was to
conform regulatory requirements to what OPM believed was already the
predominant agency practice as many agencies already employed the
practice of waiting until the later stages of the hiring process to
collect criminal history information. OPM does not currently have any
data to show whether the revised regulations affected agency hiring
processes or were instead, as OPM anticipated, a codification of
existing practices.
Currently OPM regulations, 5 CFR parts 330 and 731, prevent
agencies, unless an exception is granted by OPM, from making inquiries
into an
[[Page 24886]]
applicant's criminal or credit history of the sort asked on the
Optional Form (OF) 306 titled, Declaration for Federal Employment,
`Background Information' section or other forms used to conduct
suitability investigations for Federal employment unless the hiring
agency has made a conditional offer of employment to the applicant. The
Fair Chance Act contains the same prohibition with respect to criminal
history and does not address credit history. The Act has elaborated on
the methods of inquiry not permitted and also provides for certain
exceptions to the rule. Furthermore, the Fair Chance Act requires OPM,
when making additional exceptions, to give due consideration to
positions that involve interaction with minors, access to sensitive
information, or managing financial transactions.
Explanation of OPM's Proposed Rule Under the Fair Chance Act
1. Restrictions on Preemployment Criminal Inquiries
OPM is proposing these provisions under section 1122(b)(1) of the
Fair Chance Act, under which the Director of OPM ``shall issue such
regulations as are necessary to carry out chapter 92 of title 5, United
States Code (as added by this subtitle).'' OPM is also proposing these
provisions to implement the requirements of 5 U.S.C. 9202(c)(2), as
added by the Fair Chance Act, which requires the OPM Director to issue
regulations identifying positions with respect to which the prohibition
shall not apply giving due consideration to positions that involve
interaction with minors, access to sensitive information, or managing
financial transactions, beyond those already identified in the statute.
Unless otherwise required by law, an employee of an agency may not
request, in oral or written form (including through the Declaration for
Federal Employment (OPM Optional Form 306) or any similar successor
form, 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. Under the provisions of the Fair Chance Act, this
prohibition does not apply under the following circumstances:
Determinations of eligibility described under clause (i),
(ii) or (iii) of 5 U.S.C. 9101(b)(1)(A) i.e., for (i) access to
classified information; (ii) assignment to or retention in sensitive
national security duties or positions; or (iii) acceptance or retention
in the armed forces; or
recruitment of a Federal law enforcement officer (defined
in 18 U.S.C. 115(c)).
The Fair Chance Act applies to all appointments in the Executive
branch; i.e., to appointments in the competitive service, the excepted
service, and the Senior Executive Service (SES). Therefore, OPM is
proposing to: (1) Revise the provisions in 5 CFR part 330, subpart M,
which currently implements the Ban the Box rules for the competitive
service, by removing the reference to criminal history so that the Fair
Chance Act can be implemented for all types of appointments in a newly
created part 920; (2) preserve the existing Ban the Box rules
restricting pre-employment credit inquiries for appointments in the
competitive service; and (3) amend part 731 to incorporate the
exceptions to this provision as established by law and to refer
agencies to the newly created part 920 for guidance on other types of
positions for which the prohibition under the Act for collecting
criminal history information will not apply. For the convenience of the
reader, we are placing these provisions in the newly created part 920
rather than repeat the provisions in parts 302, Employment in the
Excepted Service; 317, Employment in the Senior Executive Service; 319,
Employment in Senior-Level and Scientific and Professional Positions;
330, and 731. OPM is also proposing to amend parts 302, 317, and 319 to
include a reference as a reminder that these types of positions are
subject to the provisions of the Fair Chance Act found in chapter 92 of
title 5, U.S.C and 5 CFR part 920.
The regulations explain that agencies may request exceptions from
OPM on a case-by-case basis. OPM will consider exceptions based on
legitimate, job/position-related reasons, giving due consideration to
requests for positions with specific job-related duties. Exceptions
previously granted to agencies by OPM pursuant to 5 CFR part 330
subpart M (i.e., the Ban the Box provisions) continue to be valid.
The proposed rule will continue to permit agencies to make an
objection, pass-over request, or suitability determination on the basis
of criminal or credit history record information only after the
applicant's qualifications for the position being filled have been
fairly assessed and the hiring agency has made a conditional offer of
employment to the applicant.
2. Complaint, Adverse Action, and Appeal Procedures
Under section 9203, the Act requires the Director of OPM to
establish and publish procedures under which an applicant for an
appointment to a position in the civil service may submit a complaint,
or any other information, relating to compliance by an employee with 5
U.S.C. 9202. Under the provisions of section 9204, the Act further
establishes minimum requirements regarding penalties for violations of
the Act and provides that such penalties may be entered only after
notice to the Federal employee accused and an opportunity for a hearing
on the record (thereby, indirectly, establishing minimum procedural
requirements before an adverse determination can be made). Finally, the
Act requires the Director of OPM, by rule, to establish procedures
providing for an appeal from any adverse action taken under section
9204 by no later than 30 days after the date of the action. The Act
further notes in section 9205 that an adverse action taken under the
Act shall not be subject to the procedures under chapter 75 of title 5
or, except as provided for the appeal process established under the
Act, be subject to appeal or judicial review. Therefore, OPM is
proposing new regulations governing complaint procedures under which an
applicant for 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 of title 5, and adverse action and appeal
procedures for alleged violations of section 9202 of title 5.
3. Section-by Section Analysis
Part 302
OPM is proposing to add Sec. 302.107 to subpart A to incorporate
the requirements of the Fair Chance Act. Proposed Sec. 302.107
addresses when inquiries into an applicant's criminal history may be
made and circumstances under which exceptions may be requested and
considered by OPM.
Part 317
OPM is proposing to add Sec. 317.202 to subpart B to incorporate
the requirements of the Fair Chance Act. Proposed Sec. 317.202
addresses when inquiries into an applicant's criminal and credit
history may be made and circumstances under which exceptions may be
requested and considered by OPM.
Part 319
OPM is proposing to add Sec. 319.106 to subpart A to incorporate
the
[[Page 24887]]
requirements of the Fair Chance Act. Proposed Sec. 319.106 addresses
when inquiries into an applicant's criminal and credit history may be
made and circumstances under which exceptions may be requested and
considered by OPM.
Part 330
The Fair Chance Act does not specifically address the timing of
suitability inquiries into a job applicant's credit history.
Nevertheless, the Presidential Memorandum of January 31, 2014,
addresses this topic, and is still in effect. As a result, OPM's
revision of Sec. 330.1300 retains the prohibition on making inquiries
into a job applicant's credit history and removes any reference to
criminal history as that prohibition will be addressed in part 920.
Part 731
The Fair Chance Act does not specifically address the timing of
suitability inquiries into a job applicant's credit history.
Nevertheless, the Presidential Memorandum of January 31, 2014,
addresses this topic, and is still in effect. As a result, OPM's
revision of Sec. 731.103(d)(1) retains the prohibition on making
inquiries into a job applicant's credit history and updates the
reference to the prohibition relating to criminal history as reflected
in the new part 920, which incorporates the requirements of the Fair
Chance Act and addresses the circumstances under which exceptions may
be requested and considered by OPM.
Part 754
Subpart A--Complaint Procedures
The Fair Chance Act directs OPM to establish and publish procedures
under which an applicant for an appointment to a position in the civil
service may submit a complaint, or any other information, regarding
compliance with 5 U.S.C. 9202. Based on these unique requirements, OPM
is proposing to add a new 5 CFR part 754 to implement the complaint
procedure requirements of the Fair Chance Act. This new proposed rule
falls under subpart A of 5 CFR part 754 as ``Complaint Procedures.''
The Fair Chance Act does not provide job applicants the ability to use
any existing statutory or regulatory complaint procedures that may be
available for other employment related complaints, such as the U.S.
Office of Special Counsel, which investigates prohibited personnel
practices. Thus, there currently is no regulatory framework for the
complaint process for job applicants to allege violations of the nature
described in the Fair Chance Act. The Fair Chance Act is also silent on
who investigates complaints.
Under 5 U.S.C. 9203(2), the Director of OPM ``shall . . . 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,'' and section 1122(b)(1) of the Fair Chance Act,
reprinted at 5 U.S.C. 9201 note, requires the Director to ``issue such
regulations as are necessary to carry out'' this and the other
requirements of chapter 92. More generally under 5 U.S.C.
1103(a)(5)(A), the Director is authorized to execute, administer, and
enforce this and any other provision of civil service law. Under these
authorities we are prescribing a complaint procedure under which an
applicant will initially file a complaint, or any other information,
and if applicable, supporting material with the employing agency, which
will transmit the material to OPM.
To be acceptable for processing by OPM, the complaint, or any other
information, and supporting material must be accompanied by a report of
investigation. However, the only investigative authority in the Fair
Chance Act is in section 9204(a), under which the Director of OPM must
determine whether a violation has occurred ``after notice and an
opportunity for a hearing on the record.'' This language encompasses
adverse action procedures, as described in greater detail below, but it
also encompasses the predicate fact-finding needed for OPM to either
initiate an adverse action based on a complaint, dismiss the complaint,
or require additional fact finding. Accordingly, OPM has determined
that, under the proposed rule, subject to certain limitations and
requirements, the best approach is for OPM to delegate to agencies its
authority under 5 U.S.C. 9204(a) to investigate a complaint, or any
other information, while reserving to OPM the authority under section
9204(a) to provide notice of a proposed adverse action and an
opportunity to respond to the charges.\1\
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\1\ This delegation of investigative authority is not possible
when the alleged violator is an administrative law judge (ALJ) for
whom an adverse action is governed by the procedures in 5 U.S.C.
7521. Such actions require formal adjudication under the
Administrative Procedure Act, under which fact-finding by an agency
head or an ALJ ``constitutes the exclusive record for decision.'' 5
U.S.C. 556(b), (e).
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Under 5 U.S.C. 1104(a) and (b), OPM may delegate, in whole or in
part, any personnel management function vested in or delegated to the
Director and establish standards and oversight programs as necessary.
In addition, under 5 CFR parts 5 and 10, OPM has responsibility to
oversee the Federal personnel system and agency compliance with merit
system principles and supporting laws, rules, regulations, Executive
Orders, and OPM standards. OPM may set forth policies, procedures,
standards, and supplementary guidance for the implementation of this
part in OPM issuances. This includes, but is not limited to, procedures
and guidance related to agency obligations to report to OPM actions
taken to investigate any complaints filed by an applicant regarding an
agency's compliance with 5 U.S.C. 9202 and adverse actions taken at the
direction of OPM for non-compliance with 5 U.S.C. 9202. Therefore, OPM
believes that with appropriate OPM guidance and oversight, agencies can
investigate violations of Fair Chance Act requirements in a fair and
impartial manner. OPM will then notify the agency employee of negative
findings, provide an opportunity for the employee to be heard, and
render a decision on the final record.
Section 754.101 Coverage
Subpart A applies to ``a complaint, or any other information,''
submitted by an applicant for an appointment to a position in the civil
service relating to compliance with 5 U.S.C. 9202. Regarding ``any
other information,'' it is conceivable that an applicant may ask a
question or raise a concern about non-compliance with section 9202
without knowledge of an agency's specific complaint procedures. Agency
procedures must address how to conduct outreach when an applicant
initiates contact about a complaint.
The proposed rule describes who may utilize the agency complaint
procedures described in Sec. 754.102. Specifically, the complaint
procedures are available to an applicant as the term applicant is
defined in proposed Sec. 920.101, which means a person who has applied
to an agency under its procedures for accepting applications consistent
with governmentwide regulations, as applicable.
Section 754.101 includes definitions that track the definitions in
part 920, as described in greater detail below.
Section 754.102 Agency Complaint Process
OPM was informed by other existing complaint procedures in
establishing the processes required by the Fair Chance Act. OPM
believes that
[[Page 24888]]
establishing a process which is similar to other successful and
effective processes will facilitate implementation of the Fair Chance
Act complaint process in covered agencies as agencies are already
familiar with these similar processes.
As noted above, within guidelines established by OPM and subject to
OPM oversight, the proposed rule assigns to each agency covered by the
Fair Chance Act regulations the responsibility to receive complaints,
or any other information, and any applicable supporting material.
Further, consistent with these OPM guidelines and oversight, the
proposed rule delegates to each agency OPM's responsibility to conduct
an investigation of the written complaint, or any other information,
regarding compliance with 5 U.S.C. 9202. Agencies then would have
responsibility to provide OPM the applicant's written complaint or any
other information, along with supporting material and the results of
the agency's investigation, so OPM may determine any further actions,
such as additional investigative fact-finding or appropriate penalties,
regarding violations of the Fair Chance Act requirements.
OPM believes there is ample precedent for agencies to establish
internal procedures for receipt and investigation of employment-related
complaints against the agency and to accomplish these tasks in a fair
and impartial manner. For example, Federal employees may request their
agency conduct a review of the classification of the employee's
position and may appeal the classification decision to the agency under
rules established by OPM. Another example concerns the responsibility
of agencies to establish programs to promote equal opportunity and to
identify and eliminate discriminatory practices and policies. This
includes the responsibility to provide for the prompt, fair, and
impartial processing of Equal Employment Opportunity (EEO) complaints
under rules established by the Equal Employment Opportunity Commission
(EEOC). These examples have helped inform OPM of successful procedures
that can be modeled in establishing the processes required by the Fair
Chance Act.
The proposed rule directs covered agencies to establish a complaint
process within 90 days of the effective date of the final rule that
allows an applicant to file a complaint, or submit any other
information, within 30 calendar days of the date of the alleged non-
compliance with 5 U.S.C. 9202 by an employee of the covered agency. The
proposed rule further directs covered agencies to extend this time
limit when the applicant shows that he or she was not notified of the
time limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have known that the non-compliance with
section 9202 occurred, to consider a reasonable accommodation of a
disability, or for other proper and adequate reasons considered by the
agency. OPM believes this provides applicants sufficient time to submit
a complaint, or any other information, and is comparable to time limits
for filing other types of employment-related complaints. It also
provides an opportunity for the applicant to submit a complaint or any
other information after 30 days if the applicant's rights to do so were
not properly publicized. This highlights why it will be critical for
agencies to widely publicize information regarding the complaint
process to job applicants. The information must appear in agency job
announcements. In addition to placing this information in job
announcements, agencies should consider placing this information on
agency websites/portals soliciting applications for those positions
that do not require a posting on USAJOBS, such as excepted service
positions. Finally, as noted above, the proposed rule requires that
covered agencies conduct outreach about its complaint procedures, when
an applicant initiates contact about an alleged violation.
The proposed rule requires covered agencies to investigate any
complaint, or any other information, regarding compliance with section
9202. It notes that in order to carry out this function in an impartial
manner, the same agency official(s) responsible for executing and
advising on the recruitment action may not also be responsible for
managing, advising, or overseeing the agency complaint process.
Agencies otherwise have discretion to determine responsibility for
investigating complaints, or any other information, under this process.
The proposed rule requires agencies to develop an impartial and
appropriate factual record sufficient for OPM to make findings on the
complaint. In other words, the record should allow a reasonable fact
finder to draw conclusions as to whether non-compliance with section
9202 occurred. Agencies otherwise have discretion to determine the
appropriate fact-finding methods to carry out this responsibility.
The proposed rule requires the agency to delegate sufficient
authority to the investigator to secure the production, from agency
employees and contractors of documentary evidence and testimonial
evidence needed to report on and investigate the complaint. While
agencies may have less control over the applicant's cooperation,
applicants have an incentive to cooperate. If an agency notifies OPM
that an applicant has refused to produce documentary or testimonial
evidence sought during the investigation, OPM may direct the agency to
suspend the investigation; or if the investigation continues despite an
applicant's failure to participate, OPM may make an adverse inference
or, in appropriate circumstances, dismiss the complaint.
In addition, the proposed rule requires the agency to complete the
investigation within 60 calendar days of the filing of the complaint.
Due to the narrow scope of section 9202, OPM believes that 60 calendar
days is sufficient time to complete a thorough investigation.
The proposed rule requires the agency to provide OPM an
administrative report on the investigation of a complaint within 30
calendar days of completing the investigation. This report should
include all necessary information for OPM to make a determination on
whether non-compliance with section 9202 occurred. The report should
include the applicant's written complaint, or any other information
submitted by the applicant, the agency's factual findings, a complete
copy of all information gathered during the investigation, and any
other information the agency believes OPM should consider. OPM may
request the agency provide additional information as necessary. After
review, OPM will notify the agency and the subject(s) of the complaint
in writing of OPM's findings regarding the complaint, including any
decision to initiate adverse action proceedings under 5 CFR part 754,
subpart B, or to dismiss the complaint.
Agencies exercise authority under this section by delegation from
OPM and must adhere to the OPM requirements for receipt and
investigation of complaints or any other information, as stated in this
section as well as any OPM issuances. Agencies must also implement
policies and procedures and maintain records demonstrating that they
employ reasonable methods to ensure adherence to the Fair Chance Act
and OPM regulations and any subsequent issuances. OPM retains the
exclusive authority to determine the sufficiency of an agency's
complaint process, including the sufficiency of the investigation. OPM
may direct further action if OPM determines it necessary for its
adjudication of the complaint or
[[Page 24889]]
any other information submitted regarding an allegation of non-
compliance with section 9202.
Section 754.103 Applicant Representatives
The proposed language in this section provides that the applicant
may select a representative of their choice to assist throughout the
complaint process. It further notes that an agency may disallow an
applicant's representative when the individual's activities as a
representative would cause a conflict of interest or position, when the
applicant designates an agency employee who cannot be released from
their official duties because of the priority needs of the Government,
or when the applicant designates an agency employee whose release would
give rise to unreasonable costs to the Government. This is comparable
to requirements and restrictions on representatives that are provided
for in OPM regulations on classification appeals. OPM believes this is
appropriate and fair for the applicant when balanced against the
business and mission needs of the agency.
Subpart B--Adverse Actions
The Fair Chance Act does not require compliance with any existing
statutory or regulatory adverse action procedures which are available
for other conduct-related matters. Section 9204 prescribes certain
penalties to be imposed by OPM for each violation of 5 U.S.C. 9202 and
requires notice and an opportunity for a hearing on the record by OPM
for any employee alleged to have committed a violation of section 9202.
Section 9205 further notes that the procedures of chapter 75 of title
5, United States Code, are not applicable and that appeal or judicial
review are not applicable except as provided under procedures
established by the Director of OPM. Based on these unique requirements,
OPM is proposing to add subpart B, Adverse Actions, under the new 5 CFR
part 754, to implement a new adverse action and appeals process related
to violations of the Fair Chance Act.
While implementing the requirements of the Fair Chance Act, we have
also been mindful of the need to provide procedures that we are
confident would provide for due process. Those include, at a minimum, a
meaningful opportunity--before a decision is made on an adverse
action--for an individual to know the charges and penalty and present a
defense. In addition, in light of the case law available in relation to
chapter 75 proceedings, we have concluded that it is prudent to provide
for the ability to appeal the adverse action of a suspension for 15
days or more before an impartial adjudicator, a procedural right that
would be available with respect to analogous penalties in a chapter 75
adverse action proceeding. The following sections identify the
requirements proposed for this new subpart and briefly describe the
purpose of each requirement.
Section 754.201 Coverage
This section describes which actions and employees are covered by
the new adverse action procedures established by OPM and defines key
terms used in the subpart. Employees of agencies as defined in section
920.101 are subject to the adverse action procedures established in
this subpart.
This section also defines the terms ``day,'' ``suspension,''
``civil penalty,'' and ``Director.'' The term ``day'' is consistent
with how OPM defines this term in adverse action rules under 5 CFR part
752. The term ``suspension'' is similar to how OPM defines it under
part 752 but modified for purposes of aligning it with the requirements
of the Fair Chance Act. OPM believes it is appropriate to use similar
definitions for the Fair Chance Act adverse action procedures to
facilitate a common understanding of these terms. The term ``civil
penalty'' is intended to clarify that this penalty is a form of
monetary penalty on a covered agency employee which is separate and
distinct from a suspension without pay. Finally, the term ``Director''
is consistent with how OPM defines it in other regulations promulgated
by OPM. OPM believes this is consistent with the Director's statutory
authority and otherwise will facilitate an effective process that
allows the Director to timely respond to complaints from across the
entire Executive Branch.
Section 754.202 Penalty Determination
This section describes the specific penalties OPM may direct an
agency to process when an agency employee has been found to have
violated section 9202 of the Act. The Act specifies certain penalties
for violations of the Act including written warnings, suspensions
without pay, and civil penalties of various amounts depending on the
violation. The Act provides that these actions are not subject to the
procedures under chapter 75 of title 5, United States Code but under
procedures established by OPM. Notably, the range of penalties includes
some forms of penalty that are not enumerated under the ``adverse
actions'' provisions found in chapter 75 of title 5, United States Code
(written warnings, civil penalties), and another form of penalty that
is found in chapter 75 and requires procedures set out in subchapter II
of chapter 75 (suspensions of 15 days or more).
Since penalties of written warnings, suspensions without pay, and
civil monetary penalties may be taken across multiple Federal agencies
utilizing various systems and internal processes, the proposed rule
specifies that the employing agency can be directed by OPM to (1) issue
the employee a written warning; (2) process a suspension; and (3)
collect a civil penalty after OPM determines a violation of section
9202 has occurred. This is comparable to OPM directing employing
agencies to process actions taken by OPM, such as removal actions for
suitability.
OPM proposes that the employing agency will collect a civil penalty
and remit it to the Treasury, for deposit in the Treasury. OPM invites
public comment on the method for collecting and remitting civil
penalties.
OPM proposes that the employing agency must carry out the
Director's order to suspend the employee as soon as practicable. This
is consistent with the practice for suspensions under chapter 75.
However, OPM proposes that if the Director orders a civil penalty, the
penalty cannot be collected and remitted until the conclusion of any
appeal to the Merit Systems Protection Board. This is consistent with 5
U.S.C. 1215(a)(3)(A), under which the Office of Special Counsel can
pursue a civil penalty as a disciplinary action, but the penalty cannot
be collected until the Board's proceedings have concluded. Deferring
the collection of a civil penalty until resolution of the Board appeal
will limit the possibility of having to collect civil penalties and
then refund them if OPM's action is not sustained. OPM will track and
monitor agencies' processing of OPM's orders by establishing new legal
authority codes and remark codes to identify that the adverse actions
are taken under 5 U.S.C. 9202. OPM's Guide to Processing Personnel
Actions will be updated to reflect the new codes.
Section 754.203 Procedures
The proposed rule establishes the procedures to be utilized for
actions taken under this subpart. The procedures in the subpart are
similar, but not identical, to the adverse action procedures found at 5
CFR part 752. There are some very unique differences. For example, a
written warning issued under this section is an adverse action and is
subject to the same procedures and retention period as any other
records of adverse actions.
[[Page 24890]]
The proposed rule specifies that the proposed action is made by the
Director or Director's designee in order to implement the statutory
requirements found in the Fair Chance Act. Since the Director is now
required to make determinations involving employees in numerous
agencies across the Executive Branch, the proposed rule provides that
the Director may designate OPM officials to act on their behalf.
The proposed rule does provide for procedural rights appropriate to
the situation: (1) A meaningful opportunity--before a decision is made
on an adverse action--for an individual to know the charges and penalty
and present a defense, with representation; and (2) the ability to
appeal the adverse action of a suspension of 15 days or more before an
impartial adjudicator. This is similar to what is found in 5 CFR part
752.
The proposed rule provides for a 30-day notice of any proposed
action under this subpart. While notices of this length are typically
only required for suspensions greater than 14 days under OPM's adverse
action rules at 5 CFR part 752, OPM believes it is appropriate to
propose a 30-day notice for any actions proposed under this subpart due
to the unique nature of this process. OPM will have to notify employees
who are located and employed in other Federal agencies, not just at
OPM. In light of these requirements, OPM believes a 30-day notice for
all proposed actions will facilitate an effective process by allowing
all parties involved to be timely notified and to effectively respond
to the proposed action.
The Fair Chance Act requires ``notice and an opportunity for a
hearing on the record'' when OPM proposes an action and before OPM
renders any decision. OPM proposes to fulfill this requirement by
providing a notice of proposed action, an opportunity to review the
material relied upon, an opportunity to respond orally and/or in
writing to the notice of proposed action to the Director of OPM (or
designee), and a decision by the Director of OPM (or delegated
designee), to be followed by an appeal to the Merit Systems Protection
Board (MSPB) if the action taken is a suspension of 15 days or longer.
This comports with (and, at least at the lower end of the penalty
range, exceeds) the 5th Amendment due process requirements for
suspension of a tenured public employee. See Gilbert v. Homar, 520 U.S.
924, 929, 930, 933 (1997).
Except as described below, a hearing before an administrative law
judge (ALJ) under the Administrative Procedure Act (APA) is not
required. OPM notes that the term ``notice and an opportunity for a
hearing on the record'' frequently invokes formal hearing procedures
under the APA, 5 U.S.C. 554(a), 556-557. See, e.g., Crestview Parke
Care Ctr. v. Thompson, 373 F.3d 743, 748 (6th Cir. 2004). An exception
in section 554(a)(2) applies, however, ``to the extent there is
involved . . . the selection or tenure of an employee.'' The phrase
``there is involved'' is broad, encompassing proceedings that implicate
employee selection or tenure even if that subject matter is not the
direct focus of the adjudication. Likewise, the APA's legislative
history shows that the phrase ``selection or tenure'' in 5 U.S.C.
554(a)(2) is to be construed broadly, since ``the selection and control
of public personnel has been traditionally regarded as a largely
discretionary function which, if to be overturned, should be done by
separate legislation.'' S. Rep. No. 79-758, at 16 (1945); see also
Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986).
The proposed rule provides that the employee's agency must give the
employee who is in an active duty status a reasonable amount of
official time to review the material relied on to support OPM's
proposed action, to prepare and present an answer orally and in
writing, and to secure affidavits. OPM may require the employee to
furnish any answer to the proposed action, and affidavits and other
documentary evidence in support of the employee's answer, within such
time as would be reasonable, but not less than 7 days. The proposed
rule provides that the OPM Director may designate an official who has
authority to make or recommend a final decision on the proposed adverse
action, hear the employee's oral answer, and consider any written
response.
An employee covered by this part is entitled to be represented by
an attorney or other representative. An agency may disallow as an
employee's representative an individual whose activities as
representative would cause a conflict of interest or position, or an
employee of the agency whose release from their official position would
give rise to unreasonable costs or whose priority work assignments
preclude their release.
Whereas the hearing obligation for non-ALJs will be fulfilled by
the procedures described above, OPM believes it is appropriate to
provide a hearing opportunity before taking an adverse action against
an ALJ. The exception in 5 U.S.C. 554(a)(2) does not apply to ``a[n]
administrative law judge appointed under section 3105 of this title.''
Likewise, 5 U.S.C. 559 provides that a subsequent statute--such as the
Fair Chance Act--``may not be held to supersede or modify'' 5 U.S.C.
7521, governing the formal APA hearing rights of ALJs facing a
suspension, ``except to the extent that it does so expressly''
(emphasis supplied). Finally, 5 U.S.C. 7521(b) includes a list of those
statutes under which an action otherwise covered by 5 U.S.C. 7521(b) is
excepted. Congress did not include the Fair Chance Act in the list of
exceptions.
Since 5 U.S.C. 9205(b)(1) generally makes procedures under
``chapter 75'' inapplicable to adverse actions taken under the Fair
Chance Act, without ``expressly'' superseding or modifying 5 U.S.C.
7521, the APA permits no deviation from the procedures in 5 U.S.C.
7521, when the alleged violator is an incumbent ALJ appointed under 5
U.S.C. 3105.
Accordingly, OPM proposes that if the employee alleged to have
violated section 9202 is an ALJ appointed under section 3105, before
OPM takes the proposed action the ALJ should have an opportunity for a
hearing before the Merit Systems Protection Board and the Board should
establish and determine whether good cause exists. Under 5 U.S.C. 1305,
the proceeding must be governed by the regulations of the Board, not
those of OPM.\2\
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\2\ We note that the penalty for a first offense of the Fair
Chance Act under 5 U.S.C. 9204(a)(1) is a mere ``warning,'' which is
not an offense listed in 5 U.S.C. 7521; while the penalty for a
subsequent offense may include a ``suspension,'' which is
specifically covered by 5 U.S.C. 7521(b)(2). Likewise a ``civil
penalty'' for a fourth or subsequent violation is not an offense
listed in section 7521. Yet 5 U.S.C. 554(a)(2) requires a formal
hearing regardless of whether or not the penalty against the ALJ is
listed in section 7521, and OPM sees no practicable way to establish
two separate formal hearing programs for offenses resulting in a
penalty not listed in 5 U.S.C. 7521 (a ``warning'' or a ``civil
penalty'') and for offenses resulting in a penalty listed in 5
U.S.C. 7521 (a ``suspension'').
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Finally, the proposed rule provides that only the reasons specified
in the notice of proposed action and any answer the employee or the
employee's representative, or both, made to the designated official may
be considered in deciding on the proposed action. In the case of ALJs,
OPM must await the MSPB's good cause determination. The decision notice
must specify in writing the reasons for the decision and advise the
employee of any appeal rights. This facilitates satisfaction of minimum
procedural rights.
Section 754.204 Appeal Rights
The Fair Chance Act does not specify any appeal rights for
penalties enacted for violations of the Act other than any
[[Page 24891]]
appeal rights established by OPM. Under 5 U.S.C. 1103(a)(5), OPM has
the broad authority to execute, administer, and enforce civil service
rules and regulations. Therefore, pursuant to its statutory authority,
as well as the President's delegation of his authority, OPM does have
statutory authority to create the right of appeal to the Merit Systems
Protection Board (MSPB) by regulation where appropriate. The Merit
Systems Protection Board, in turn, has the responsibility to ``hear,
adjudicate, or provide for the hearing or adjudication, of all matters
within the jurisdiction of the Board under . . . law, rule, or
regulation,'' and an employee may appeal to the Board ``from any action
which is appealable to the Board under any law, rule, or regulation.''
5 U.S.C. 1204(a)(1), 7701(a) (emphasis supplied). Both the U.S. Court
of Appeals for the Federal Circuit and the Board have consistently
affirmed the principle that the Board's enabling statute gives it
appellate jurisdiction over actions that are made appealable to the
Board by OPM regulation; and that where an appeal is solely by
regulation, the regulation circumscribes the scope of the appeal. See
Roberto v. Dep't of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006);
Folio v. Dep't of Homeland Sec., 402 F.3d 1350, 1355 (Fed. Cir. 2005);
Dowd v. United States, 713 F.2d 720, 722-23 (Fed. Cir. 1983); Gaxiola
v. Dep't of the Air Force, 6 M.S.P.R. 515, 519 (1981). For example, a
probationer has certain rights of appeal only as conferred by OPM
regulation. OPM is prescribing an MSPB appeal right for adverse actions
of 15 days or longer and for civil penalties taken under the Fair
Chance Act as described below, when the alleged violator is an employee
other than an ALJ.
For forms of misconduct not covered by the Fair Chance Act, written
warnings and suspensions of 14 days or less do not have appeal rights
to the MSPB. This was an intentional choice on Congress's part in
passing the Civil Service Reform Act (CSRA). This scheme balances the
interests of Federal employees with the needs of ``sound and efficient
administration.'' See United States v. Fausto, 484 U.S. 439, 445
(1988). Prudently, the more serious the personnel action, the more
robust are the remedies afforded. For example, ``Chapter 75 of the Act
governs adverse actions taken against employees for the `efficiency of
the service,' which includes action . . . based on misconduct.''
Fausto, at 446. Employees facing a ``major adverse action'' are
entitled to MPSB review, and, if the decision is adverse, subsequent
appeal to the MSPB's reviewing court, the U.S. Court of Appeals for the
Federal Circuit. Id. at 447. A covered employee facing only a ``minor
adverse personnel action''--that is, a relatively short suspension--is
entitled to less robust remedies, id. at 450: Namely, advance written
notice, a reasonable time to respond, the right to be represented by an
attorney, and a timely written decision, but not the right to full
review by the MSPB and appeal to the Federal Circuit. 5 U.S.C. 7503(b).
For these reasons, OPM believes such appeal rights should not be
conferred for written warnings and suspensions of 14 days or less taken
under this subpart. This promotes efficiency and avoids creating
inconsistencies on when appeal rights are provided for similar
penalties on different types of misconduct. Moreover, for a short
suspension under the Fair Chance Act, as for a short suspension under
chapter 75, the procedures we propose--advance notice, an opportunity
to review the material relied upon, and an opportunity for a written
submission and an oral hearing before an OPM official, prior to any
final action--are fair and adequate, without the need for an additional
level of appeal to the MSPB.
Conversely, OPM has concluded that it would be appropriate to
provide MSPB appeal rights for suspensions of more than 14 days under
this subpart or any decision to impose a civil penalty. This
facilitates a consistent approach to appeal rights for suspensions
taken under the Fair Chance Act and under chapter 75. The agency will
process any action at OPM's direction. Thus, there is no separate right
of appeal to the agency from the decision. Any appeal to the MSPB will
be against OPM and not against both OPM and the employee's agency.
The Board will have the authority to reverse OPM's action if the
charges are not proved by preponderant evidence. If the Board finds
that OPM has proved at least one specification of the charge by
preponderant evidence, the Board must sustain the action. The Fair
Chance Act does not incorporate the requirement in 5 U.S.C. 7503(a) and
7513(a) that an adverse action shall be ``for such cause as will
promote the efficiency of the service.'' Accordingly, there is no
requirement for OPM to prove a nexus between the employee's conduct and
service efficiency, and the Board cannot mitigate the penalty.\3\
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\3\ In addition, a Fair Chance Act appeal is not a category of
appeal for which the Board inherited the Civil Service Commission's
penalty mitigation authority upon its establishment in 1978. See
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 292-94 (1981). Likewise,
where, as in 5 U.S.C. 9205(a), Congress authorizes OPM to prescribe
appellate procedures by regulation, OPM has latitude to prescribe
the scope of the Board's jurisdiction. See Folio, 402 F.3d at 1355.
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OPM reads 5 U.S.C. 9205(b) as permitting the Director to decide
which adverse actions are subject to appeal and which are not. Because
the adverse action is ordered by OPM and only processed by the
employing agency, there is no right to file an administrative grievance
or contractual negotiated grievance for the adverse action under a
negotiated grievance procedure. OPM, not the employing agency, orders
the action under the Fair Chance Act. OPM is not a party in an agency's
administrative grievance procedures, and OPM is not the subject of a
collective bargaining agreement between an agency and an exclusive
bargaining representative for that agency.\4\ Therefore, an agency
cannot overrule OPM's decision; the agency is merely processing an
action taken by OPM. OPM invites public comment on whether a grievance
procedure of some kind should be provided for short suspensions, and on
how it would work considering that employing agencies lack discretion
when OPM orders an adverse action.
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\4\ In addition, an adverse action under the Fair Chance Act is
not an action within the meaning of 5 U.S.C. 7512, so there can be
no election of remedies under 5 U.S.C. 7121(e)(1).
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Section 754.205 Agency Records
This section outlines what OPM and the covered agency must maintain
copies of, and their obligation under the Privacy Act.
Part 920
OPM is proposing to regulate the provisions of the Fair Chance Act
in 5 CFR part 920 because these provisions apply to positions in the
excepted, Senior Executive, and competitive services. For the
convenience of the reader, we are placing them in one location rather
than repeat the provisions in parts 302, 317, 319, and 330,
respectively. We also note that some agencies may have positions that
are exempt from part 302 but not exempt from the provisions of the Fair
Chance Act. Likewise, agencies may have positions akin to those in the
SES, but which operate outside the provisions of part 317. Placing
these rules in a common location not tied specifically to title 5
excepted service or SES rules will help mitigate any confusion as to
their applicability governmentwide.
[[Page 24892]]
Subpart A
Proposed subpart A, of part 920 General Provisions, contains
general provisions that are applicable to the timing of criminal
history inquiries. Proposed section 920.101 contains definitions
necessary for the administration of this part.
Proposed Sec. 920.102 explains which positions are covered by this
part and which positions may be excluded. Section 920.102(a) makes
clear that positions in the competitive service, excepted service, and
SES in executive agencies as well as positions in the United States
Postal Service and the Postal Regulatory Commission are covered by this
part. Section 920.102(b) states that for purposes of this part an
exempt position is any position for which a hiring agency is required
by statute to make inquiries into an applicant's criminal history prior
to extending an offer of employment to the applicant.
The Fair Chance Act defines which agencies are covered by the Act.
This definition includes an Executive Agency as such term is defined in
5 U.S.C. 105; the United States Postal Service and the Postal
Regulatory Commission; and the Executive Office of the President. An
``Executive agency'' is defined in 5 U.S.C. 105 to mean an Executive
Department under 5 U.S.C. 101, a Government corporation under 5 U.S.C.
103, and an independent establishment under 5 U.S.C. 104 (including the
Government Accountability Office). Therefore, coverage of the Fair
Chance Act is broad.
The definition of an ``executive agency'' in 5 U.S.C. 105 does not
specifically include a ``military department'' as defined in 5 U.S.C.
102: Namely, the Department of the Army, the Department of the Navy, or
the Department of the Air Force. OPM construes the Fair Chance Act to
cover the military departments as well as the Department of Defense in
which they reside, and proposes to include the military departments in
the definition of a ``agency.'' Absent an expression of congressional
intent to the contrary, because military departments are part of the
Department of Defense, they are subject to those Civil Service laws
that apply to an ``executive agency'' within the meaning of 5 U.S.C.
105. See White v. Dep't of the Army, 115 M.S.P.R. 664, 668 (2011). Yet
``[t]he organizational history of the Department of Defense indicates
that the military service departments were intended to function--at
least, with respect to personnel matters--with the independence that
generally characterizes executive departments outside the Department of
Defense, rather than the limited kind of independence that generally
characterizes organizations within those departments.'' Pervez v. Dep't
of Navy, 193 F.3d 1371, 1373 (Fed. Cir. 1999 (quoting Francis v. Dep't
of the Navy, 53 M.S.P.R. 545, 549 (1992)). Thus, because of the
military departments' ``treatment as separate agencies for personnel
purposes,'' Pervez, 193 F.3d at 1374, OPM's proposed rule defines the
military departments as separate ``agencies'' for purposes of complying
with the Fair Chance Act.
While the coverage of Executive departments in 5 U.S.C. 101 is
straightforward enough, 5 U.S.C. 9202(1) makes no specific exceptions
for subdivisions of Executive departments which have their own
statutory personnel authorities. Prominent examples include the
Veterans Health Administration within the Department of Veterans
Affairs, the Federal Aviation Administration within the Department of
Transportation, the Transportation Security Administration within the
Department of Homeland Security, and the intelligence components of the
Department of Defense. We welcome comment on whether any statute
establishing an alternative personnel system for a subdivision of a
department or agency creates an exception from 5 U.S.C. 9202(1),
notwithstanding the Fair Chance Act's later date of enactment.
The Fair Chance Act covers ``Government corporations'' and
``independent establishments'' as defined in 5 U.S.C. 103 and 104, and
OPM must include them, generally, as covered ``agencies'' in our
proposed rule. We note that these definitions have been broadly
construed to cover a number of entities that have historically operated
outside of the title 5 personnel system. Under 5 U.S.C. 103, ``
`Government corporation' means a corporation owned or controlled by the
Government of the United States,'' and this text has been construed to
include both corporations wholly owned by the U.S. Government, and
mixed-ownership corporations under U.S. Government control, as
specified in 31 U.S.C. 9101(2) and (3). See Snead v. Pension Benefit
Guar. Corp., 74 M.S.P.R. 501, 503 (1997); Dockery v. Fed. Deposit Ins.
Corp., 64 M.S.P.R. 458, 461-62 (1984). In light of this broad
construction, we are soliciting comment on whether the authorizing
statute of any Government corporation operates to make an exception
from 5 U.S.C. 9202(1)'s coverage, notwithstanding the Fair Chance Act's
later date of enactment.
The term ``independent establishment'' is defined in 5 U.S.C. 104
as ``an establishment in the executive branch . . . which is not an
Executive department, military department, Government corporation, or
part thereof, or part of an independent establishment.'' The term has
been construed broadly to cover independent, free-standing
establishments with their own structure, or entities that have been
created by statute or executive order and are not privately owned or
privately controlled. Applicability of the Fed. Vacancies Reform Act to
Vacancies at the Int'l Monetary Fund and the World Bank, 24 Op. O.L.C.
58, 65-66 (2000); Hereford v. Tenn. Valley Auth., 88 M.S.P.R. 201, 205-
206 (2001). There is no specific exception in 5 U.S.C. 104 for
independent regulatory agencies or commissions as defined in 44 U.S.C.
3502(5), or for free-standing agencies that largely operate outside of
the title 5 personnel system. Accordingly, we are soliciting comment on
whether the authorizing statute of any independent establishment
operates to make an exception from 5 U.S.C. 9202(1)'s coverage,
notwithstanding the Fair Chance Act's later date of enactment.
Finally, 5 U.S.C. 9202(1)(B) expressly extends OPM's rulemaking and
enforcement power under the Fair Chance Act to ``the Executive Office
of the President.'' We construe this language as applying to an
application for any competitive service position within the Executive
Office of the President (EOP), consistent with OPM's broad legal
authority over competitive service employment. Under 5 U.S.C. 3302 and
1104(a)(1), the President may ``prescribe rules governing the
competitive service'' and ``delegate . . . authority for personnel
management functions'' to OPM. The President has prescribed Civil
Service Rules I and V, as codified in parts 1 and 5 of Title 5, Code of
Federal Regulations. These rules state that for ``all positions in the
competitive service and . . . all incumbents of such positions,'' OPM
``may secure effective implementation of the civil service laws, rules,
and regulations'' by ``[e]valuating the effectiveness of . . . agency
compliance with and enforcement of applicable laws, rules, regulations
and office directives'' and ``[i]nvestigating, or directing an agency
to investigate and report on, apparent violations of applicable laws,
rules, regulations, or directives requiring corrective action, found in
the course of an evaluation.'' 5 CFR 1.1, 5.2(b), (c). Following OPM's
report of an evaluation or investigation, ``[w]henever the Director
issues specific
[[Page 24893]]
instructions as to separation or other corrective action with regard to
an employee, including cancellation of a personnel action, the head of
the agency concerned shall comply with the Director's instructions;''
and OPM ``shall promulgate and enforce regulations necessary to carry
out'' these requirements. 5 CFR 5.1, 5.3(b).
In 5 U.S.C. 1103(a)(5)(A) and 1303(1), Congress has charged OPM
with ``executing, administering, and enforcing'' these civil service
rules and ``investigat[ing] and report[ing] on matters concerning . . .
the enforcement and effect'' of these rules. These provisions do not
restrict OPM's oversight authority over positions and employees in the
competitive service based on where they are placed in the Executive
branch. Thus, it would be consistent with preexisting authority for OPM
to order a penalty under the Fair Chance Act as a corrective action,
following an investigation and an adverse action proceeding, if an EOP
employee is found to have made a prohibited inquiry to an applicant for
a competitive service position.
However, OPM's oversight authority is more limited with respect to
positions and employees in the excepted service. We do not believe
Congress intended to subject applications for positions outside of the
competitive service in every component of the Executive Office of the
President to OPM's regulatory and enforcement jurisdiction under the
Fair Chance Act, considering the established principle that some, but
not all, EOP components are ``independent establishments'' of the
Executive branch within the meaning of 5 U.S.C. 104, and thus within 5
U.S.C. 105's definition of an ``executive agency'' subject to regular
title 5 employment rules.
The term ``independent establishment'' in 5 U.S.C. 104 has been
construed to cover those free-standing components of the EOP which have
their own structure and unity, such as the Office of Management and
Budget; but to exclude from its coverage components of informal or ad
hoc nature, i.e., working groups or task forces. See Applicability of
the Fed. Vacancies Reform Act, 24 Op. O.L.C. at 65-66, 67. The term has
also been held to exclude those EOP components which are not
``independent establishments'' by operation of other laws. See Haddon
v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995) (noting the exclusion
of the Executive Residence).\5\ Thus OPM's proposed rule does not
extend to applications for positions outside of the competitive service
in these components of the Executive Office of the President.
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\5\ We note that there is also substantial case law on when an
EOP component is a covered ``agency'' within the meaning of the
Freedom of Information Act (FOIA), 5 U.S.C. 552(f)(2). This case law
did not guide us in construing whether an EOP component is an
``agency'' within the meaning of the Fair Chance Act. This is
because, despite facial similarities between 5 U.S.C. 105 and 5
U.S.C. 552(f)(2), the test of whether an EOP component is covered by
the FOIA derives from the FOIA's unique legislative history, rather
than from its text. See Kissinger v. Reporter's Comm. for Freedom of
the Press, 445 U.S. 136, 156 (1980); Citizens for Responsibility and
Ethics in Wash. v. Office of Admin., 566 F.3d 219, 222 (D.C. Cir.
2009). OPM has no reason to believe that Congress intended the same
considerations to govern EOP's coverage under the FOIA and EOP's
coverage under the Fair Chance Act.
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In addition, the Act defines the terms ``appointing authority,''
``conditional offer,'' and ``criminal history record information.'' An
``appointing authority'' is 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. ``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. The term ``criminal
history record information'' has the meaning given the term in section
5 U.S.C. 9101(a), except as provided in subparagraphs (B) and (C) of
section 9201. Subparagraph (B) states that criminal history record
information includes any information described in the first sentence of
section 9101(a)(2) that has been sealed or expunged pursuant to law.
Subparagraph (C) states that criminal history record information
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). OPM incorporates these
definitions without additional interpretation, as they are clear on
their face.
The Fair Chance Act uses the term ``employee,'' which is defined in
5 U.S.C. 2105; but effectively modifies the definition by including, in
its coverage, the United States Postal Service and the Postal
Regulatory Commission, which would otherwise be excluded from the
definition by operation of 5 U.S.C. 2105(e). Accordingly, we are adding
the following definition to proposed Sec. 920.101: ``Employee means an
`employee' as defined in 5 U.S.C. 2105, and an employee of the United
States Postal Service or the Postal Regulatory Commission.''
As described in greater detail below, we are defining ``political
appointment'' as an appointment by the President without Senate
confirmation (except those appointed under 5 CFR 213.3102(c)) because
these are not positions of a confidential or policy determining
character); an appointment to a position compensated under the
Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a
White House Fellow to be assigned as an assistant to a top-level
Federal officer (5 CFR 213.3102(z)); a schedule C appointment (5 CFR
213.3301, 213.3302); a noncareer, limited term, or limited emergency
Senior Executive Service appointment (5 CFR part 317, subpart F); an
appointee to serve in a political capacity under agency-specific
authority; and a provisional political appointment. This definition
lists the different types of political appointing authorities found in
regulation and statute.
Finally, we are defining an ``applicant'' as a person who has
actually applied to an agency under its procedures for accepting
applications. This definition resolves a textual ambiguity in 5 U.S.C.
9202(a). It makes clear that the Fair Chance Act's remedies are only
for persons who have actually applied for Federal jobs, not for persons
who, for example, are merely considering applying for a job, have saved
a resume in an on-line applicant interface such as USAJOBS but have not
yet submitted it in response to a job opportunity announcement, or have
attended a recruiting event but have not yet formally applied for a
vacancy. We note that for USAJOBS announcements, 5 CFR 330.104 requires
agencies to notify applicants of how to submit an application and how
the receipt of an application will be documented.
Subpart B
Proposed subpart B addresses when inquiries into an applicant's
criminal history may be made. Proposed Sec. 920.201 regulates this
aspect of the Fair Chance Act. Proposed paragraph (a) states that an
agency cannot request an applicant's criminal history information
orally or in written form, prior to giving a conditional offer of
employment. This includes the following points in the recruitment and
hiring process: (1) Initial application, through a job opportunity
announcement on USAJOBS, or through any recruitment/public notification
such as on the agency's website/social media, etc.; (2) after an agency
receives an initial application through its back-end system, through
shared service providers/recruiters/contractors, or orally or via
[[Page 24894]]
email and other forms of electronic notification; and (3) prior to,
during, or after a job interview. This prohibition applies to agency
personnel, shared service providers, contractors involved in the
agency's recruitment and hiring process, automated systems (specific to
the agency or governmentwide), etc.
Proposed paragraph (b) tracks the requirements of 5 U.S.C. 9202(b)
and (c)(1). It allows agencies to make inquiries into a job applicant's
criminal history, prior to making a conditional job offer to that
applicant, if doing so is otherwise required by law, if the position
requires a determination of eligibility for access to classified
information or employment in a sensitive position, or eligibility for
acceptance or retention in the armed forces (as described in 5 U.S.C.
9101(b)(1)(A)(i), (ii), or (iii)), or if it is a Federal law
enforcement officer position (as defined in section 115(c) of title
18). We are clarifying that for this purpose a ``sensitive position''
is one that been so designated under the Position Designation System
issued by OPM and the Office of Director of National Intelligence,
which describes in greater detail agency requirements for designating
positions that could bring about a material adverse effect on the
national security. This conforms to our regulations governing sensitive
positions in 5 CFR 1400.201.
The reference in the Fair Chance Act to a position requiring a
determination of eligibility for acceptance or retention in the armed
forces is ambiguous. By its terms the Fair Chance Act applies only to
applicants for ``an appointment to a position in the civil service,''
not for acceptance into the armed forces. We construe this provision as
relating to those positions in the civil service where the applicant is
required to maintain military membership as a condition of civilian
Federal employment, i.e., a dual-status military technician position.
Our proposed rule incorporates this interpretation.
The Fair Chance Act applies to applicants to positions in the
``civil service,'' which, under 5 U.S.C. 2101(1), extends to ``all
appointive positions'' in the executive branch. Proposed paragraph (b)
makes an exception for applicants for political appointments, since
political appointees provide confidential, policy-determining, or
policy-advocating functions on behalf of the President or
presidentially-appointed agency heads, and serve as personal advisors
and representatives to the President and other senior administration
officials. Pre-employment criminal history screening may be required
for these positions prior to a conditional offer of employment, because
of the utmost trust and discretion required in these positions and the
potential for adverse publicity associated with unfit applicants. OPM
is not making an exception for applicants to positions requiring
appointment by the President with the advice and consent of the Senate.
The Fair Chance Act already excludes such positions because a
``conditional offer'' is never extended for these positions under 5
U.S.C. 9202(a); rather, the individual is nominated and then confirmed.
Proposed paragraph (b) also describes other circumstances for which
OPM may grant exceptions in response to a request from a hiring agency.
OPM may grant exceptions on a case-by-case basis only when an agency
demonstrates specific job-related reasons why the agency needs to
evaluate an applicant's criminal history for a position prior to making
a conditional offer giving due consideration to positions that involve
interaction with minors, access to sensitive information, or managing
financial transactions.
Proposed paragraph (c) adds the requirement to notify applicants of
the prohibition in job opportunity announcements and on agency
websites/portals for positions that do not require a posting on
USAJOBS, such as excepted service positions, in addition to information
about its complaint process as required by part 754 of this chapter.
Proposed Sec. 920.202 defines what constitutes a violation of the
Fair Chance Act and the prohibition in proposed Sec. 920.201. Proposed
paragraph (a) defines a violation as any oral or written request from
criminal history information prior to a conditional job offer. Proposed
paragraph (b) explains that a violation occurs when a prohibited
inquiry is made by agency personnel, including when they act through
shared service providers, contractors involved in the agency's
recruitment/hiring process, or automated systems (specific to the
agency or governmentwide).
This section also outlines several situations in which a violation
could occur. An agency cannot request criminal history information upon
the initial application, through a job opportunity announcement on
USAJOBS, or through any recruitment/public notification such as on the
agency's website/social media. An agency also cannot request this
information after an agency receives an initial application through its
back-end system, through shared service providers/recruiters/
contractors, or orally or via email and other forms of electronic
notification prior to giving the conditional offer. Additionally, the
agency cannot request the information verbally prior to, during, or
after a job interview prior to giving a conditional offer.
Proposed paragraph (c) provides that when a prohibited request,
announcement, or communication is publicly posted or simultaneously
distributed to multiple applicants, it constitutes a single violation.
This resolves an ambiguity in the language of 5 U.S.C. 9202(a) and
prevents the absurd and unintended outcome of thousands of violations
and complaints arising from a single job opportunity announcement on
USAJOBS.
Proposed paragraph (d) explains that any violation as defined in
paragraph (a) is subject to the complaint and penalty procedures in
part 754 of this chapter.
Expected Impact of This Proposed Rule
A. Statement of Need
OPM is issuing this proposed rule to implement the provisions of
the Fair Chance Act found in Chapter 92 of title 5, United States Code.
This statute prohibits Federal agencies and Federal contractors from
requesting that applicants for employment disclose criminal history
record information before the agency makes a conditional offer of
employment to that employee. The Fair Chance Act identifies some
positions to which the prohibition shall not apply and requires OPM to
issue regulations identifying additional positions to which the
prohibition shall not apply. It also requires OPM to establish
complaint procedures under which an applicant for a position in the
civil service may submit a complaint, or any other information,
relating to compliance by an employee of an agency with the Fair Chance
Act, and adverse action and appeal procedures when it has been
determined that a Federal employee has violated the Fair Chance Act.
OPM is implementing these statutory requirements in the least
burdensome way it can while still effectuating the congressional
purposes of the Fair Chance Act.
B. Impact
The proposed rule allows job applicants to present their
qualifications and abilities for assessment and be considered based on
their merits without the specter of a criminal record during the
selection process. Employment of people with criminal records is the
single most important
[[Page 24895]]
influence on reducing re-offending.\6\ The impact to communities and
society includes reducing criminal justice costs, crime victimization
costs, and the costs of incarceration to the reoffenders and their
families.\7\ Another significant impact of the proposed rule is that
the Federal government, as the nation's largest employer and a model
employer, will demonstrate an example of fair hiring practices by
removing unnecessary barriers for people with records who desire to
join the Federal workforce.
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\6\ National Employment Law Project, ``The Business Case:
Becoming a Fair-Chance Employer'' (June 2016).
\7\ U.S. Department of Labor, ``Reducing Recidivism and
Increasing Opportunity'' (June 2018).
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OPM believes there is significant value in being able to
demonstrate the effect of these proposed regulations on both Federal
agencies and formerly incarcerated individuals. As noted earlier,
however, OPM currently does not have and is not aware of any data to
show what impact, if any, OPM's existing ``Ban the Box'' rules have had
on agency hiring processes. Therefore, OPM invites comments regarding
any hiring data agencies may have that demonstrate the effect of either
OPM's prior regulations or the potential impact of these proposed
rules. This includes ways that these proposed rules may impact the size
of applicant pools for positions not previously covered by OPM's
regulation, including positions in the excepted service as well as
positions in the United States Postal Service and the Postal Regulatory
Commission.
C. Regulatory Alternatives
OPM's implementing regulations are required by statute and cannot
be avoided. In the proposed regulations for part 754, OPM fleshes out
procedures for receiving and investigating complaints, or any other
information, as well as procedural and appeal rights for an agency
employee alleged to have violated section 9202. The statute establishes
the agencies and employees covered by proposed 5 CFR part 754,
available penalties that can be imposed for an employee found to have
violated section 9202, and the 30-day timeframe for appealing an
adverse action.
First, OPM considered the option of receiving complaints, and any
other information, directly from applicants and conducting its own
outreach and investigative fact-finding, as appropriate to the nature
of the applicant's submission. However, OPM believes there is ample
precedent for agencies to establish internal procedures for receipt and
investigation of employment-related complaints against the agency and
to accomplish these tasks in a fair and impartial manner. Therefore, we
have laid out an approach that we believe is minimally burdensome for
agencies. Subject to OPM guidelines and oversight, the proposed rule
assigns to each agency covered by the Fair Chance Act regulations the
responsibility to receive complaints, or any other information, and any
applicable supporting material. Further, the proposed rule delegates to
each agency OPM's responsibility to conduct an investigation of the
complaint, or any other information, regarding compliance with 5 U.S.C.
9202. OPM believes that establishing a process which is similar to
other successful and effective processes will facilitate implementation
of the Fair Chance Act complaint process in covered agencies as
agencies are already familiar with these similar processes. While the
proposed rule provides parameters to guide agencies and facilitate
governmentwide consistency, the assignment and delegation to agencies
reduces the need for what would be more extensive regulations if OPM
were directly receiving and investigating complaints, and other
information, related to an alleged violation of section 9202.
Regarding the procedures for adverse actions, the statute requires
notice and an opportunity for a hearing on the record by OPM for any
employee alleged to have committed a violation of section 9202. Section
9205 further notes that the procedures of chapter 75 of title 5, United
States Code, are not applicable and that appeal or judicial review are
not applicable except as provided under procedures established by the
Director of OPM. Because chapter 75 procedures are not available, it is
necessary for OPM to propose an alternative to implement the unique
procedural and appeal elements of the Fair Chance Act. In developing
proposed procedures, OPM considered the benefits of adapting the
adverse action procedures found at 5 CFR part 752 rather than another
approach. Adapting the part 752 procedures affords agencies the benefit
of familiarity, facilitates ease of transfer in knowledge and skills to
the new regulations, and reduces the need for more extensive or complex
regulations.
D. Costs
Costs Related to Parts 302, 317, 319, 330, 731 and 920--Restrictions on
Preemployment Criminal Inquiries Prior to Conditional Offer
This rule will affect the operations of over 80 Federal agencies--
ranging from cabinet-level departments to small independent agencies.
This rule expands the prohibition on making inquiries into an
applicant's criminal background prior to a conditional offer of
employment. The prohibition currently applies to positions in the
competitive service. The proposed rule would expand this prohibition to
include agencies with positions in the excepted service and the Senior
Executive Service. There are approximately 20 agencies in the Executive
Branch that are fully in the excepted service that will be impacted by
this rule. We estimate that this rule will require individuals employed
by these agencies to develop policies and procedures to implement the
rule when making appointments. For the purpose of this cost analysis,
with regard to parts 302, 317, 319, 330, 731, and 920, the assumed
average salary rate of Federal employees performing this work will be
the rate in 2022 for GS-14, step 5, from the Washington, DC, locality
pay table ($143,064 annual locality rate and $68.55 hourly locality
rate). We assume that the total dollar value of labor, which includes
wages, benefits, and overhead, is equal to 200 percent of the wage
rate, resulting in an assumed labor cost of $137.10 per hour.
In order to comply with the regulatory changes in this proposed
rule, affected agencies will need to review the rule and update their
policies and procedures. We estimate that, in the first year following
publication of the final rule, this will require an average of 250
hours of work by employees with an average hourly cost of $137.10. This
would result in estimated costs in that first year of implementation of
about $34,275 per agency, and about $2,742,000 in total governmentwide.
We do not believe this rule will substantially increase the ongoing
administrative costs to agencies (including the administrative costs of
administering the program and hiring and training new staff).
Costs Related to Part 754--Complaint Procedures, Adverse Actions, and
Appeals for Criminal History Inquiries Prior to Conditional Offer
Regarding the implementation of the regulatory requirements in
proposed part 754, in the event of a complaint by an applicant,
agencies will incur labor costs associated with the investigation into
the complaint and OPM will incur labor costs associated with reviewing
the results of the investigation and reaching a determination which
could include issuing a notice of proposed action to the subject of the
complaint, considering any response, and making a
[[Page 24896]]
final determination. In the event OPM directs the employing agency to
take an action as a result of a founded complaint, OPM would incur
labor costs in responding to and/or defending any appeal by the subject
of the complaint to the Merit Systems Protection Board.
In order to estimate the costs to implement the proposed regulatory
requirements in part 754 for complaint procedures, adverse actions, and
appeals, OPM made certain assumptions and considered that some costs
may vary depending on agency size and the extent to which an agency is
able to leverage existing policies, practices, and procedures. For this
cost analysis, the assumed staffing for Federal employees performing
the work required by the regulations in part 754 is one executive; one
GS-14, step 5; a GS-15, step 5; and one GS-7, step 5 in the Washington,
DC, locality area. The 2022 basic rate of pay for an executive at an
agency with a certified SES performance appraisal system ranges from
$135,468 to $203,700 annually, for an average of $169,584 per year or
$81.26 per hour. For General Schedule employees in the Washington, DC,
locality area, the 2022 pay table rates are $168,282 annually and
$80.63 hourly for GS-15, step 5; $143,064 annually and $68.55 for GS-
14, step 5, and $57,393 annually and $27.50 hourly for GS-7, step 5. We
assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in assumed hourly labor costs of $162.51 for an executive;
$161.27 for a GS-15, step 5; $137.10 for a GS-14, step 5; and $55 for a
GS-7, step 5.
As to overall complaint procedures, program implementation and
oversight, OPM assumes it will incur certain upfront costs and then
ongoing costs. For example, the establishment of new processing codes
requires one-time updates to OPM's databases and personnel action
processing handbook. After the issuance of any final rule effecting
part 754, OPM may develop additional materials related to its
implementation. This includes, but is not limited to, procedures and
guidance related to agency obligations to report to OPM actions taken
to investigation any complaints filed by an applicant regarding an
agency's compliance with 5 U.S.C. 9902 and adverse actions taken at the
direction of OPM for non-compliance with 5 U.S.C. 9202. OPM estimates
that the cost for its implementation and oversight in the first year
will be $30,370.00 and $3,687.04 on average in subsequent years.
OPM estimates that it will cost each agency $21,319.04 in the first
year to establish an internal policy for handling alleged violations of
5 U.S.C. 9202. We assume that larger agencies advertise more vacancies
and are therefore likely to receive a greater number of complaints. We
estimate the annual cost of complaint intake and investigation for
large agencies to be $172,746.00 (based on an average of 30 complaints
per large agency); medium size agencies $115,164.00 (for 20
complaints); and small size agencies $57,582.00 (for 10 complaints).
The total estimated cost for agencies to receive and investigate
complaints is $345,492.00 annually, which averages to $5,758.20 per
complaint.
For agency outreach regarding any other information that may
potentially be an attempt to file a complaint for an alleged violation
of 5 U.S.C. 9202, OPM again assumes that larger agencies advertise more
vacancies and are therefore likely to experience a greater number of
such instances. We estimate that large agencies on average may conduct
30 instances of outreach and incur $8,226.00 for the total number of
instances. Medium size agencies may conduct outreach for 20 instances
and incur $5,484.00 total. Small agencies may conduct outreach for 10
instances and incur $2,742.00 total. The total estimated annual cost of
agency outreach is $16,452.00 and the average cost of agency outreach
is $274.20 per instance.
Following agency intake, outreach (if applicable), and
investigation, OPM is responsible for administering the adverse action
procedures as outlined in proposed Sec. 754.203. Based on the estimate
for the annual number of complaints that Federal agencies may receive
(60 for large, medium, and small agencies combined), OPM estimates that
75%, or 15, of the complaints may result in a finding of a violation of
5 U.S.C. 9202. While OPM will carefully review and consider each
investigative file submitted by agencies, OPM expects that only those
investigations that result in a finding of a violation will generate a
meaningful increase in cost above staff's usual duties and
responsibilities. Assuming 15 such cases, the total cost for OPM's
administration of the adverse action procedures, including proposing an
action, considering any reply, and issuing a decision, is estimated to
be $159,818.40. The average cost for OPM per adverse action is
$10,654.56.
Under the proposed regulation, agencies are responsible for
processing any adverse action imposed by OPM. Agencies routinely
process suspensions for other forms of misconduct. Thus, applying those
same procedures to adverse actions imposed for violations of 5 U.S.C.
9202 will be a negligible cost for agencies. However, OPM does
anticipate some cost for the one-time update to agency processing
systems for the new codes established by OPM to identify that the
adverse actions are taken under 5 U.S.C. 9202, as well as the
establishment of agency procedures for the collection of civil
penalties. OPM estimates the costs to agencies in the first year for
updating their systems and procedures and processing actions to be
$24,690.04. Thereafter, we estimate that the average cost for an agency
to process an adverse action, including any civil penalty, is $960.50
per action.
The available penalties for violations of 5 U.S.C. 9202 include
written warnings and short suspensions (14 days or less) that are not
grievable or appealable. Further, an employee's first two violations of
section 9202 will result in a penalty no stronger than a seven-day
suspension. For only a third or subsequent violation would OPM impose a
penalty that may be appealable to the MSPB. While such an appeal to the
MSPB is possible, we believe that it will be rare that an employee
violates section 9202 three or more times. OPM anticipates that if 15
adverse actions are imposed per year, only one on average will be
appealable to the MSPB. We therefore do not believe there will be a
measurable impact on MSPB operations and thus, we have not estimated
costs for the MSPB.
Because any appeal filed is against OPM and not the employing
agency, OPM will be responsible for defending the action. OPM estimates
$11,447.84 to defend an appeal.
The remaining requirements of the proposed part 754 for complaint
procedures, adverse actions, and appeals will require minimal costs for
OPM or agencies. With respect to informing applicants of the agency's
complaint procedures via the agency's public website and in vacancy
announcements, the additional cost to agencies will be small. Agencies
already provide notice on their public websites and in vacancy
announcements about how an applicant can file an EEO complaint. Also,
agencies provide information to the public on their external websites
about how to file an Inspector General complaint. Thus, an additional
notice does not present a significant additional cost. In conclusion,
OPM estimates a cost of $598,141.47 to implement the complaint
procedures under the proposed Fair Chance Act regulations in the first
year and the recurring cost per year to be $32,782.34.
[[Page 24897]]
Indirect Costs
We note that OPM's rule, when finalized, may have indirect costs on
other entities. Section 1122(d) of the Fair Chance Act amends section
207(d)(2) of the Congressional Accountability Act of 1995 to require
the Board of Directors of the Office of Congressional Workplace Rights
to promulgate regulations that are ``the same'' as OPM's ``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.'' Section 1122(e) of the
Fair Chance Act similarly amends 28 U.S.C. 604(e)(5)(B) to require the
Director of the Administrative Office of the U.S. Courts to promulgate
regulations that are ``the same'' as OPM's ``except to the extent that
the Director . . . 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.'' Finally, section 1123(c) of the
Fair Chance Act requires the Federal Acquisition Regulation (FAR)
Council to amend the FAR ``to be consistent with'' OPM's regulations
``to the maximum extent practicable'' and to ``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.''
Such indirect costs are not quantifiable since sections 1122(d)-(e)
and 1123(c) of the Fair Chance Act give the other entities significant
leeway to adopt, reject, or modify OPM's regulations with respect to
the populations covered by those sections.
E. Benefits
The Fair Chance Act regulations will help level the playing field
for applicants with a criminal history record, contribute to an
equitable and diverse Federal workforce, and enhance transparency and
accountability in the Federal hiring process. More than 70 million
adults in the United States have an arrest or conviction record that
can show up on a routine background check for employment. As a result,
one in three adults may face serious challenges securing employment in
order to provide for their families and communities.\8\ With some
exceptions, the Fair Chance Act prohibits Federal employers from
requesting that an applicant disclose criminal history record
information before the agency makes a conditional offer of employment
to that applicant. The proposed regulations provide the opportunity for
qualified applicants with records to advance in the hiring process just
as a qualified applicant without a criminal history record would
advance. Studies show that employment is the single most important
factor in reducing recidivism; that people with criminal records are no
more likely to be fired for misconduct than people without records; and
that they are statistically less likely to quit, which saves employers
in turnover costs.\9\ Therefore, the regulations benefit not only the
Federal government as an employer but also American society as a whole
at the family and community levels.
---------------------------------------------------------------------------
\8\ National Employment Law Project Fact Sheet, FAQ (December
17, 2019).
\9\ Lee-Johnson, ``Give Job Applicants with Criminal Records a
Fair Chance'' (September 21, 2020), and Society for Human Resources
Management, ``2021 Getting Talent Back to Work Report'' (May 2021).
---------------------------------------------------------------------------
This regulation will support the Administration's priority to
advance comprehensive equity. Executive Order 14035 establishes an
initiative on diversity, equity, inclusion, and accessibility (DEIA).
As part of the DEIA Initiative, a Government-Wide Strategic Plan To
Advance Diversity, Equity, and Accessibility In The Federal Workforce
was released by OPM in November 2021. This new DEIA strategic plan
directs agencies to prioritize a number of efforts to support
sustainability and continued improvement on DEIA matters. The proposed
rule can help Federal agencies realize the vision of the Federal
government as a model employer in the areas of diversity, equity, and
inclusion. There is evidence that people of color have less access to
basic resources as compared to other segments of the American
population. For example, Black women with records are most impacted by
the high rate of unemployment for formerly incarcerated people.\10\ By
removing barriers to fair competition through the Fair Chance Act along
with other initiatives, Federal agencies stand to gain a more diverse
applicant pool, improve equity in the hiring process, and build or
maintain a workforce fully representative of America.
---------------------------------------------------------------------------
\10\ National Employment Law Project Fact Sheet, FAQ (December
17, 2019).
---------------------------------------------------------------------------
Finally, another benefit of the proposed rule is increased
transparency and accountability in the Federal hiring process. The
regulations protect the rights of applicants who believe they have been
subjected to a violation of 5 U.S.C. 9202 and holds accountable Federal
employees found to have committed such a violation. This regulation
should have a deterrent effect on supervisors, managers, and other
employees involved in the hiring process to prevent them from engaging
in activities that are in violation of the Fair Chance Act.
F. Request for Comment and Data
In addition to the questions posed in the regulatory analysis and
given the limited information on the Federal Government's
implementation on Ban the Box, OPM requests comment on the
implementation and impacts of Ban the Box efforts in the private
sectors. Such information will be useful for better understanding the
impact of these regulations on hiring by Federal agencies. The types of
information that OPM is interested in include, but are not limited to,
the following:
Based on what the private sector has done, what should
OPM, Federal agencies, and the government as a whole hope to accomplish
with implementation of these regulations?
Has your organization's implementation of Ban the Box
impacted and aided your organization's diversity, equity, inclusion,
and accessibility efforts? If so, how?
Does your hiring process include any proactive efforts or
accommodations related to candidates who have a criminal history
record? Have you taken any steps, such as streamlining or revising your
application process to address barriers facing candidates who have a
criminal history record?
How many roles does your organization have that are
currently open or will be open that can be filled by candidates with
criminal history records? How many positions has your organization
filled?
How does your organization measure success with respect to
hiring candidates with criminal history records? Do you have data or
reports to share?
To the extent your organization has data regarding the
number of employees who have a criminal history record, what has been
your experience with respect to those candidates and employee turnover?
How does employee turnover for those with criminal history records
compare to employee turnover for those without criminal history
records?
[[Page 24898]]
Has Ban the Box increased qualified applicants for hard-
to-fill positions? If so, what types of positions?
OPM recognizes that engaging in efforts to hire candidates
with a criminal history record is not only an opportunity to diversify
the federal government workforce but is also a chance to forge
meaningful connections with job development experts in local
communities. How has your organization partnered with local source
partners to give you strategic access to talented individuals with
criminal history records? What should OPM and federal agencies consider
in this area?
Are there actions that you have taken to better ensure
that applicants with criminal history records can succeed once hired?
How can OPM ensure federal agencies are ready to receive talented
applicants who have criminal history records, once they receive
conditional offers of employment?
Many candidates with criminal history records who are
qualified in terms of the skills they possess may not have previous job
experience in the role, or may have a lengthy employment gap during a
period of incarceration. As your organization recruits for your open
roles, how have you focused on identifying candidates who, even though
they may not have significant work experience, can demonstrate
transferable skills that will make them successful in your
organization?
Some studies \11\ suggest implementation of Ban the Box
results in lower employment for certain groups. What should OPM and
Federal agencies do to avoid these outcomes? Are there other studies to
review and consider as part of the federal hiring process for these
individuals to mitigate or avoid these outcomes?
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\11\ See Amanda Agan, Sonja Starr, Ban the Box, Criminal
Records, and Racial Discrimination: A Field Experiment, The
Quarterly Journal of Economics, Volume 133, Issue 1, February 2018,
Pages 191-235, https://doi.org/10.1093/qje/qjx028 and Doleac,
Jennifer L., and Benjamin Hansen. ``The unintended consequences of
``ban the box'': Statistical discrimination and employment outcomes
when criminal histories are hidden.'' Journal of Labor Economics
38.2 (2020): 321-374.
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Are there additional ways that the Federal Government can
be a model employer with respect to individuals with criminal history
records?
G. List of Sources
Lee-Johnson, Margie. ``Give Job Applicants with Criminal Records a
Fair Chance.'' Harvard Business Review, September 21, 2020. https://hbr.org/2020/09/give-job-applicants-with-criminal-records-a-fair-chance?autocomplete=true
National Employment Law Project. ``FAQ: Fair Chance to Compete for
Jobs Act of 2019,'' December 2019. https://s27147.pcdn.co/wp-content/uploads/Fact-Sheet-FAQ-Federal-Fair-Chance-Compete-Jobs-Act-2019.pdf
National Employment Law Project. ``The Business Case: Becoming a
Fair-Chance Employer,'' June 2016. https://s27147.pcdn.co/wp-content/uploads/Business-Case-Fair-Chance-Employment.pdf
Society for Human Resources Management. ``2021 Getting Talent Back
to Work Report: A Workplace Survey on Hiring and Working with People
with Criminal Records,'' May 2021. https://www.gettingtalentbacktowork.org/wp-content/uploads/2021/05/2021-GTBTW_Report.pdf
U.S. Department of Labor. ``Reducing Recidivism and Increasing
Opportunity: Benefits and Costs of the RecycleForce Enhanced
Transitional Jobs Program,'' June 2018. https://www.mdrc.org/sites/default/files/ETJD_STED_Benefit_Cost_Technical_Supplement_508.pdf
Executive Orders 13563 and 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. In accordance with the provisions of Executive Order
12866, this rule was reviewed by the Office of Management and Budget as
a significant, but not economically significant, rule.
Regulatory Flexibility Act
The OPM Director certifies that this rule will not have a
significant economic impact on a substantial number of small entities
because it applies only to Federal agencies and employees.
E.O. 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local or
tribal governments of more than $100 million annually. Thus, no written
assessment of unfunded mandates is required.
Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires rules to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this rule before its
effective date, as required by 5 U.S.C. 801. The Office of Information
and Regulatory Affairs in the Office of Management and Budget has
determined that this rule is not a major rule as defined by the CRA (5
U.S.C. 804).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number.
This rule makes reference to an OMB approved collection of
information subject to the PRA titled Declaration for Federal
Employment (OF 306), OMB Control Number 3206-0182, which has been
submitted to OMB for review. This form is completed by applicants who
are under consideration for Federal or Federal contract employment and
collects information about an applicant's selective service
registration, military service, and general background. The information
collected on this form is mainly used to determine a person's
acceptability for Federal and Federal contract employment, and their
retirement status and life insurance enrollment. The information on
this form may be used in conducting an investigation to determine a
person's suitability or ability to hold a security clearance, and it
may be disclosed to authorized officials making similar, subsequent
determinations. The OF 306 asks for
[[Page 24899]]
personal identifying data and information about violations of the law,
past convictions, imprisonments, probations, parole, military court
martial, delinquency on a Federal debt, Selective Service Registration,
United States military service, Federal civilian or military retirement
benefits received or applied for, and life insurance enrollment.
Public reporting burden for this collection of information is
estimated to average 15 minutes per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated as follows:
Respondents: 315,478.
Total Annual Responses: 315,478.
Total Burden Hours: 78,870.
Interested persons are invited to send comments regarding burden
estimates or any other aspect of this collection of information. OPM is
soliciting comments to:
1. Evaluate the necessity and utility of the proposed information
collection for the proper performance of the agency's functions,
including whether the information will have practical utility;
2. evaluate the accuracy of the estimated burden, including the
validity of the methodology and assumptions used;
3. enhance the quality, utility, and clarity of the information to
be collected; and
4. use automated collection techniques or other forms of
information technology to minimize the information collection burden.
Submit comments on this collection of information no later than June
27, 2022, through https://www/regulations.gov and follow the
instructions on the site.
A copy of the proposed information collection and the associated
instructions is available at https://www.opm.gov/forms/pdf_fill/of0306.pdf. The systems of record notice for this collection is:
https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-govt-1-general-personnel-records.pdf.
List of Subjects in 5 CFR Part 302, 317, 319, 330, 731, 754, and
920
Administrative practices and procedures, Government employees. U.S.
Office of Personnel Management.
Office of Personnel Management
Alexys Stanley,
Regulatory Affairs Analyst.
Accordingly, OPM is proposing to amend chapter I of title 5, Code
of Federal Regulations, as follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. Revise the authority citation for part 302 to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320,
8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); Sec. 302.105 also
issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501
also issued under 5 U.S.C. 7701 et seq; Sec. 302.107 also issued
under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1).
0
2. Add Sec. 302.107 to subpart A to read as follows:
Sec. 302.107 Suitability inquiries regarding criminal history.
Agency inquiries regarding criminal history must be done in
accordance with the requirements under chapter 92 of title 5, U.S. Code
and part 920 of this chapter.
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
0
3. Revise the authority citation for part 317 to read as follows:
Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595,
3596, 8414, and 8421. Sec. 317.202 also issued under 5 U.S.C. 9201-
9206 and Pub. L. 116-92, sec. 1122(b)(1).
0
4. Add Sec. 317.202 to subpart B to read as follows:
Sec. 317.202 Suitability inquiries regarding criminal history.
Agency inquiries regarding criminal history must be done in
accordance with the requirements under chapter 92 of title 5, U.S. Code
and part 920 of this chapter.
PART 319--EMPLOYMENT IN THE SENIOR-LEVEL AND SCIENTIFIC AND
PROFESSIONAL POSITIONS
0
5. Revise the authority citation for part 319 to read as follows:
Authority: 5 U.S.C. 1104, 3104, 3324, 3325, 5108, and 5376.
Sec. 319.106 also issued under 5 U.S.C. 9201-9206 and Pub. L. 116-
92, sec. 1122(b)(1).
0
6. Add Sec. 319.106 to subpart A to read as follows:
Sec. 319.106 Suitability inquiries regarding criminal history.
Agency inquiries regarding criminal history must be done in
accordance with the requirements under chapter 92 of title 5, U.S. Code
and part 920 of this chapter.
PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)
0
7. Revise the authority citation for part 330 to read as follows:
Authority: 5 U.S.C. 1104, 1302, 3301, 3302, 3304, and 3330; E.O.
10577, 3 CFR, 1954-58 Comp., p. 218; Section 330.103 also issued
under 5 U.S.C. 3327; Subpart B also issued under 5 U.S.C. 3315 and
8151; Section 330.401 also issued under 5 U.S.C. 3310; Subparts F
and G also issued under Presidential Memorandum on Career Transition
Assistance for Federal Employees, September 12, 1995; Subpart G also
issued under 5 U.S.C. 8337(h) and 8456(b). Sec. 330.1301 also
issued under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1).
0
8. Revise subpart M to read as follows:
Subpart M--Timing of Background Investigations
Sec. 330.1300 Timing of suitability inquiries in competitive hiring.
(a) A hiring agency may not make specific inquiries concerning an
applicant's credit background of the sort asked on the OF-306,
Declaration for Federal Employment, or other forms used to conduct
suitability investigations for Federal employment (i.e., inquiries into
an applicant's adverse credit history) unless the hiring agency has
made a conditional offer of employment to the applicant. Agencies may
make inquiries into an applicant's Selective Service registration,
military service, citizenship status, where applicable, or previous
work history, prior to making a conditional offer of employment to an
applicant.
(b) However, in certain situations, agencies may have a business
need to obtain information about the credit background of applicants
earlier in the hiring process to determine if they meet the
qualifications requirements or are suitable for the position being
filled. If so, agencies must request an exception from the Office of
Personnel Management in order to determine an applicant's ability to
meet qualifications or suitability for Federal employment prior to
making a conditional offer of employment to the applicant(s). OPM will
grant exceptions only when the agency demonstrates specific job-related
reasons why the agency needs to evaluate an applicant's adverse credit
history earlier in the process. OPM will consider such factors as, but
not limited to, the nature of the position being filled and whether a
clean credit history record would be essential to the ability to
perform one of the duties of the
[[Page 24900]]
position effectively. OPM may also consider positions for which the
expense of completing the examination makes it appropriate to review an
applicant's credit background at the outset of the process (e.g., a
position that requires that an applicant complete a rigorous training
regimen and pass an examination based upon the training before their
selection can be finalized). A hiring agency must request and receive
an OPM-approved exception prior to issuing public notice for a position
for which the agency will collect credit background information prior
to completion of the assessment process and the making of a conditional
offer of employment.
Sec. 330.1301 Suitability inquiries regarding criminal history.
Agency inquiries regarding criminal history must be done in
accordance with the requirements under chapter 92 of title 5, U.S. Code
and part 920 of this chapter.
PART 731--SUITABILITY
0
9. Revise the authority citation for part 731 to read as follows:
Authority: 5 U.S.C. 1302, 3301, 7301, 9201--9206; Pub. L. 116-
92, sec. 1122(b)(1); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218, as
amended; E.O. 13467, 3 CFR, 2009 Comp., p. 198; E.O. 13488, 3 CFR,
2010 Comp., p. 189; 5 CFR, parts 1, 2 and 5; Presidential Memorandum
on Enhancing Safeguards to Prevent the Undue Denial of Federal
Employment Opportunities to the Unemployed and Those Facing
Financial Difficulty Through No Fault of Their Own, January 31,
2014.
0
10. In Sec. 731.103, revise paragraph (d)(1) to read as follows:
Sec. 731.103 Delegation to agencies.
* * * * *
(d)* * *
(1) Except where required by law, a hiring agency may not make
specific inquiries concerning an applicant's criminal or credit
background in oral or written form (including through the OF-306 or
other forms used to conduct suitability investigations for Federal
employment, USAJOBS, or any other electronic means) unless the hiring
agency has made a conditional offer of employment to the applicant.
Agencies may request an exception to the provision for making credit
inquiries in advance of a conditional offer in accordance with the
provisions in 5 CFR part 330 subpart M. For criminal inquiries prior to
a conditional offer, this prohibition does not apply to applicants for
positions excepted under 5 CFR 920.201(b). If an agency has a business
need to obtain information about the criminal history of applicants for
other positions earlier in the process, they must follow the guidance
in part 920 which also addresses the provisions for requesting an
exception from the Office of Personnel Management. Agencies may make
inquiries into an applicant's Selective Service registration, military
service, citizenship status, where applicable, or previous work
history, prior to making a conditional offer of employment to an
applicant.
0
11. Add part 754 as to read follows:
PART 754--COMPLAINT PROCEDURES, ADVERSE ACTIONS, AND APPEALS FOR
CRIMINAL HISTORY INQUIRIES PRIOR TO CONDITIONAL OFFER
Subpart A--Complaint Procedures
Sec.
754.101 Coverage.
754.102 Agency complaint process.
754.103 Applicant representatives.
Subpart B--Adverse Actions
754.201 Coverage.
754.202 Penalty determination.
754.203 Procedures.
754.204 Appeal rights.
754.205 Agency records.
Authority: 5 U.S.C. 554(a)(2), 1103(a)(5)(A), 1104(a)(2), 9201-
9205, and Pub. L. 116-92, sec. 1122(b)(1).
Subpart A--Complaint Procedures
Sec. 754.101 Coverage.
(a) Actions covered. A complaint, or any other information,
submitted by an applicant for an appointment to a civil service
position relating to compliance with section 9202 of title 5, United
States Code.
(b) Definitions. In this subpart, agency, applicant, appointing
authority, conditional offer, criminal history record information, and
employee have the meanings set forth in 5 CFR 920.101.
Sec. 754.102 Agency complaint process.
(a) Complaint intake. (1) Within 90 days of the effective date of
this part, each agency must establish and publicize an accessible
program for the agency to receive a complaint, or any other
information, from an applicant, and any applicable supporting material,
relating to the agency's compliance with section 9202 of title 5,
United States Code and part 920 of this chapter, in accordance with the
guidelines and standards established in this section and the issuances
described in paragraph (d)(3) of this section.
(2) An applicant may submit a complaint, or any other information,
to an agency within 30 calendar days of the date of the alleged non-
compliance by an employee of an agency with section 9202 of title 5,
United States Code.
(3) The agency shall extend the 30 calendar day time limit in
paragraph (b) of this section when the applicant shows that he or she
was not notified of the time limits and was not otherwise aware of
them, that he or she did not know and reasonably should not have known
that the non-compliance with 5 U.S.C. 9202 and part 920 of this chapter
occurred, to consider a reasonable accommodation of a disability, or
for other proper and adequate reasons considered by the agency.
(4) The agency must conduct outreach to inform an applicant of the
procedure for submitting a complaint when it has reasonable cause to
believe that the applicant is attempting to file a complaint.
(b) Agency investigation. (1) Acting under delegated authority from
OPM and subject to the limitations and requirements of paragraph (d) of
this section, the agency employing the employee against whom the
complaint has been filed shall investigate the complaint, unless the
employee is an administrative law judge appointed under 5 U.S.C. 3105.
To carry out this function in an impartial manner, the same agency
official(s) responsible for executing and advising on the recruitment
action may not also be responsible for managing, advising, or
overseeing the agency complaint process established in this section.
(2) In carrying out its delegated responsibilities under paragraph
(b)(1) of this section, the agency shall develop an impartial and
appropriate factual record adequate for OPM to make findings on the
claims raised by any written complaint. An appropriate factual record
is one that allows a reasonable fact finder to draw conclusions as to
whether non-compliance with 5 U.S.C. 9202 and part 920 of this chapter
occurred. Agencies have discretion to determine the appropriate fact-
finding methods that efficiently and thoroughly address the matters at
issue.
(3) The agency must delegate to the investigator sufficient
authority to secure the production, from agency employees and
contractors, of documentary and testimonial evidence needed to
investigate and report on the complaint.
(4) The agency shall complete its investigation within 60 calendar
days of the date of the filing of the complaint.
(5) Within 30 calendar days of completing its investigation, the
agency shall provide to OPM an administrative report. This report
should include the
[[Page 24901]]
applicant's complaint, or any other information submitted by the
applicant, the agency's factual findings, a complete copy of all
information gathered during the investigation, and any other
information that the agency believes OPM should consider. The report
should be submitted to the Manager, Employee Accountability,
Accountability and Workforce Relations, Employee Services, Office of
Personnel Management, 1900 E Street NW, Washington, DC 20415.
(c) OPM adjudication. (1) At OPM's discretion, OPM may request the
agency provide additional information as necessary.
(2) OPM shall notify the agency and the subject(s) of the complaint
in writing of its findings regarding the complaint, including any
decision to initiate adverse action proceedings.
(d) OPM oversight. (1) OPM may revoke an agency's delegation under
this section if an agency fails to conform to this section or OPM
issuances as described in paragraph (d)(3) of this section.
(2) OPM retains jurisdiction to make final determinations and take
actions regarding the receipt and investigation of complaints, or any
other information; record-keeping; and reporting related to an
allegation of noncompliance with 5 U.S.C. 9202 and part 920 of this
chapter. Paragraphs (a) and (b) of this section notwithstanding, OPM
may, in its discretion, exercise its jurisdiction under this section in
any case it deems necessary.
(3) OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of this section in OPM
issuances.
Sec. 754.103 Applicant representatives.
An applicant may select a representative of their choice to assist
the applicant during the complaint process. An agency may disallow as
an applicant's representative an individual whose activities as a
representative would cause a conflict of interest or position; an
agency employee who cannot be released from their official duties
because of the priority needs of the Government; or an agency employee
whose release would give rise to unreasonable costs to the Government.
Subpart B--Adverse Actions
Sec. 754.201 Coverage.
(a) Actions covered. This subpart applies to actions taken under 5
U.S.C. 9204.
(b) Employees covered. This subpart covers an employee of an agency
as defined in 5 CFR 920.101.
(c) Definitions. In this subpart--
Civil penalty means a monetary penalty imposed on an employee of a
covered agency when it has been determined the employee has violated
the Fair Chance Act.
Day means a calendar day.
Director means the Director of OPM or the Director's designee.
Suspension means the placing of an employee of a covered agency in
a temporary status without duties and pay when it has been determined
the employee violated the Fair Chance Act.
Sec. 754.202 Penalty determination.
(a) First violation. If the Director or Director's designee
determines that an employee of an agency has violated 5 U.S.C. 9202 and
part 920 of this chapter, the Director or Director's designee, after
OPM provides the procedural rights in Sec. 754.203, shall 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 direct the agency to file such warning in the employee's official
personnel record file.
(b) Subsequent violations. If the Director or Director's designee
determines, after OPM provides the procedural rights in Sec. 754.203,
that an employee of an agency has committed a subsequent violation of 5
U.S.C. 9202 and part 920 of this chapter, the Director or Director's
designee may take the following action:
(1) For a second violation, order a suspension of the employee for
a period of not more than 7 days.
(2) For a third violation, order a suspension of the employee for a
period of more than 7 days.
(3) For a fourth violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $250, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(4) For a fifth violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $500, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(5) For any subsequent violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $1,000, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(c) Duration of suspension and penalty amount. The Director or the
Director's Designee has discretion to determine the duration of a
suspension and the amount of a penalty under this section, subject only
to the minimum and maximum durations and amounts specified in this
section.
(d) Agency responsibilities. An agency shall carry out an order of
the Director to suspend an employee, or to collect and remit a civil
penalty, pursuant to processing and recordkeeping instructions issued
by OPM.
(1) The agency shall carry out the order of the Director to suspend
the employee as soon as practicable.
(2) The agency shall carry out the order of the Director to collect
and remit a civil penalty as soon as practicable, unless the employee
timely appeals the action under Sec. 754.204, in which case the agency
shall collect and remit the civil penalty as soon as practicable after
the Merit Systems Protection Board issues a final decision sustaining
the action.
(e) Administrative law judges. Paragraphs (a) through (d) of this
section do not apply if the Director or Director's designee determines
that an administrative law judge has violated 5 U.S.C. 9202 and part
920 of this chapter. In any such case the Director or the Director's
designee shall file a complaint with the Merit Systems Protection Board
proposing an action set forth in 5 U.S.C. 9204 and describing with
particularity the facts that support the proposed agency action, and
the Board will determine whether the action is for good cause under its
regulations in 5 CFR part 1201, subpart D.
Sec. 754.203 Procedures.
(a) Notice of proposed action. If the Director or Director's
designee determines a violation of 5 U.S.C. 9202 and part 920 of this
chapter has occurred, an employee against whom action is proposed under
this subpart is entitled to at least 30 days' advance written notice.
The notice must state the specific reason(s) for the proposed action
and inform the employee of their right to review the material which is
relied on to support the reasons for action given in the notice before
any final decision is made by the Director or Director's designee.
(b) Employee's answer. (1) An employee may answer orally and in
writing. The employee's agency must
[[Page 24902]]
give the employee a reasonable amount of official time to review the
material relied on to support OPM's proposed action, to prepare and
present an answer orally and in writing, and to secure affidavits, if
the employee is in an active duty status. OPM may require the employee
to furnish any answer to the proposed action, and affidavits and other
documentary evidence in support of the employee's answer, within such
time as would be reasonable, but not less than 7 days.
(2) The Director or Director's Designee may designate an Office of
Personnel Management official to hear the employee's oral answer, and
confer authority on that person to make or recommend a final decision
on the proposed adverse action.
(c) Representation. An employee covered by this part is entitled to
be represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from their official position would
give rise to unreasonable costs or whose priority work assignments
preclude their release.
(d) OPM decision. (1) In arriving at a decision, the Director or
the Director's Designee will consider only the complaint, the
applicant's supporting material, the agency's administrative file, the
reasons specified in the notice of proposed action, and any oral and
written answer by the employee or the employee's representative.
(2) The decision notice must specify in writing the reasons for the
decision and advise the employee of any appeal rights.
(e) This section does not apply if the Director or Director's
designee determines that an administrative law judge has violated 5
U.S.C. 9202 and part 920 of this chapter.
Sec. 754.204 Appeal rights.
(a) An employee against whom an action is taken by OPM under Sec.
754.203 may appeal to the Merit Systems Protection Board, under the
regulations of the Board, but only to the extent the action concerns
suspensions for more than 14 days or combines a suspension and a civil
penalty. An appeal must be filed by not later than 30 days after the
effective date of the action. The procedures for filing an appeal with
the Board are found at 5 CFR part 1201.
(b) If the Board finds that one or more of the charges brought by
OPM against the employee is supported by a preponderance of the
evidence, regardless of whether all specifications are sustained, it
must affirm OPM's action. The Board may neither review whether the
adverse action is for such cause as will promote the efficiency of the
service, nor mitigate the duration of a suspension or the amount of a
civil penalty ordered under this part.
(c) An appeal against OPM is the exclusive avenue of appeal. The
employee has no right to file a separate appeal against the employing
agency for processing a personnel action as ordered by OPM under Sec.
754.202.
(d) OPM's action under Sec. 754.202 is not subject to an agency's
administrative grievance procedure or a negotiated grievance procedure
under a collective bargaining agreement between an exclusive bargaining
representative and any agency.
Sec. 754.205 Agency records.
The complaint, the applicant's supporting material, the agency's
administrative file, the notice of the proposed action, the employee's
written reply, if any, any summary or transcript of the employee's oral
reply, if any, the notice of decision, and any order to the covered
agency effecting the action together with any supporting material, must
be maintained in an appropriate system of records under the Privacy
Act.
PART 920--TIMING OF CRIMINAL HISTORY INQUIRIES
Subpart A--General Provisions
Sec.
920.101 Definitions.
920.102 Positions covered by Fair Chance Act regulations.
Subpart B--Timing of Inquiries Regarding Criminal History
920.201 Limitations on criminal history inquiries.
920.202 Violations.
Authority: 5 U.S.C. 1103(a)(5)(A), 9201-9206 and Pub. L. 116-92,
sec. 1122(b)(1).
Subpart A--General Provisions
Sec. 920.101 Definitions.
For the purpose of this part:
Agency means--
(1) An Executive agency as such term is defined in 5 U.S.C. 105,
including--
(i) An Executive department defined in 5 U.S.C. 101;
(ii) A Government corporation defined in 5 U.S.C. 103(1); and
(iii) An independent establishment defined in 5 U.S.C. 104,
including the Government Accountability Office;
(2) A military department as defined in 5 U.S.C. 102;
(3) The United States Postal Service and the Postal Regulatory
Commission; and
(4) Each component of the Executive Office of the President that is
an independent establishment, or that has a position in the competitive
service, with respect to an applicant for the position.
Applicant means a person who has applied to an agency under its
procedures for accepting applications consistent with governmentwide
regulations, as applicable.
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.
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.
Criminal history record information--(1) Except as provided in
paragraphs (2) and (3) of this definition, has the meaning given the
term in section 9101(a) of title 5, United States Code;
(2) Includes any information described in the first sentence of
section 9101(a)(2) of title 5, United States Code, that has been sealed
or expunged pursuant to law; and
(3) Includes information collected by a criminal justice agency,
relating to an act or alleged act of juvenile delinquency, that is
analogous to criminal history record information (including such
information that has been sealed or expunged pursuant to law).
Employee means an ``employee'' as defined in 5 U.S.C. 2105 and an
employee of the United States Postal Service or the Postal Regulatory
Commission.
Political appointment means an appointment by the President without
Senate confirmation (except those appointed under 5 CFR 213.3102(c));
an appointment to a position compensated under the Executive Schedule
(5 U.S.C. 5312 through 5316); an appointment of a White House Fellow to
be assigned as an assistant to a top-level Federal officer (5 CFR
213.3102(z)); a Schedule C appointment (5 CFR 213.3301, 213.3302); a
noncareer, limited term, or limited emergency Senior Executive Service
appointment (5 CFR part 317, subpart F); an appointee to serve in a
political capacity under agency-specific authority; and a provisional
political appointment.
Sec. 920.102 Positions covered by Fair Chance Act regulations.
(a) Positions covered. This part applies to all positions in the
competitive service, excepted service, and Senior Executive Service in
an agency.
[[Page 24903]]
(b) Exempt positions. For purposes of this part an exempt position
is any position for which a hiring agency is required by statutory
authority to make inquiries into an applicant's criminal history prior
to extending an offer of employment to the applicant.
Subpart B--Timing of Inquiries Regarding Criminal History
Sec. 920.201 Limitations on criminal history inquiries.
(a) Applicability. (1) 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. This includes the following points
in the recruitment and hiring process:
(i) Initial application, through a job opportunity announcement on
USAJOBS, or through any recruitment/public notification such as on the
agency's website/social media, etc.;
(ii) After an agency receives an initial application through its
back-end system, through shared service providers/recruiters/
contractors, or orally or via email and other forms of electronic
notification; and
(iii) Prior to, during, or after a job interview.
(2) This prohibition applies to agency personnel, including when
they act through shared service providers, contractors involved in the
agency's recruitment and hiring process, or automated systems (specific
to the agency or governmentwide).
(b) Exceptions for certain positions. (1) The prohibition under
paragraph (a) shall not apply with respect to an applicant for an
appointment to a position:
(i) Which is exempt in accordance with Sec. 920.102(b);
(ii) That requires a determination of eligibility for access to
classified information;
(iii) Has been designated as a sensitive position under the
Position Designation System issued by OPM and the Office of Director of
National Intelligence, which describes in greater detail agency
requirements for designating positions that could bring about a
material adverse effect on the national security;
(iv) Is a dual-status military technician position in which an
applicant or employee is subject to a determination of eligibility for
acceptance or retention in the armed forces, in connection with
concurrent military membership; or
(v) Is a Federal law enforcement officer position meeting the
definition in section 115(c) of title 18, U.S. Code.
(2) The prohibition under this paragraph (a) shall not apply with
respect to an applicant for a political appointment.
(3) OPM may grant additional exceptions on a case-by-case basis
only when an agency demonstrates specific job-related reasons why the
agency needs to evaluate an applicant's criminal history for a position
prior to making a conditional offer, giving due consideration to
positions that involve transactions with minors, access to sensitive
information, or managing financial transactions. OPM will consider such
factors as, but not limited to, the nature of the position being filled
and whether a clean criminal history record would be essential to the
ability to perform one of the duties of the position effectively.
(c) Notification to applicants. Each agency must publicize to
applicants the prohibition described in paragraph (a) of this section
in job opportunity announcements and on agency websites/portals for
positions that do not require a posting on USAJOBS, such as excepted
service positions, and information on where it has posted its complaint
intake process under part 754 of this chapter.
Sec. 920.202 Violations.
(a) An agency employee may not request, orally or in writing,
information about an applicant's criminal history prior to making a
conditional offer of employment to that applicant unless the position
is exempted or excepted in accordance with Sec. 920.201(b).
(b) A violation (or prohibited action) as defined in paragraph (a)
of this section occurs when agency personnel, shared service providers,
or contractors involved in the agency's recruitment and hiring process,
either personally or through automated systems (specific to the agency
or governmentwide), make oral or written requests prior to giving a
conditional offer of employment--
(1) In a job opportunity announcement on USAJOBS or in any
recruitment/public notification such as on the agency's website or
social media;
(2) In communications sent after an agency receives an initial
application, through an agency's talent acquisition system, shared
service providers/recruiters/contractors, orally or in writing
(including via email and other forms of electronic notification); or
(3) Prior to, during, or after a job interview or other applicant
assessment.
(c) When a prohibited request, announcement, or communication is
publicly posted or simultaneously distributed to multiple applicants,
it constitutes a single violation.
(d) Any violation as defined in paragraph (a) of this section is
subject to the complaint and penalty procedures in part 754 of this
chapter.
[FR Doc. 2022-08975 Filed 4-26-22; 8:45 am]
BILLING CODE 6325-39-P