On September 10, a bipartisan group of lawmakers in both houses of Congress introduced the Fair Chance Act (S. 2021/H.R. 3470). The Fair Chance Act was introduced by Sen. Cory Booker (D-N.J.) and Rep. Elijah Cummings (D-Md.). Co-sponsors of the bill are Senators Ron Johnson (R-Wi.), Tammy Baldwin (D-Wi), Sherrod Brown (D-Ohio), and Joni Ernst (R-Iowa); Representatives Darrell Issa (R-Calif.), Sheila Jackson Lee (D-Texas), Earl Blumenauer (D-Ore.), Bonnie Watson Coleman (D-N.J.), Cedric Richmond (D-La.), John Conyers (D-Mich.), and Bobby Scott (D-Va.).
The Fair Chance Act, if enacted, would prohibit federal agencies or contractors from asking job applicants about criminal histories until a formal job offer has been presented to the candidate, contingent upon the results of a background check and criminal history review by the employer. At that time, the employer would be permitted to revoke the offer based on the results of the criminal history review.
The proposed law includes exceptions for “sensitive positions,” including law enforcement, national security, and positions with access to classified information. The Fair Chance Act is currently pending in committee in both chambers, and was the subject of an October 7 hearing in the Senate Homeland Security and Government Affairs Committee.
More than 100 cities and counties and 17 states have adopted similar rules, but only Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Rhode Island, the District of Columbia, and cities such as San Francisco and Chicago, have passed laws that govern how non-public employers address the issue of an applicant’s criminal background.
Troutman Sanders has extensive experience in counseling companies on background screening compliance, including in “ban the box” jurisdictions.