Effective January 3, 2017, the Office of Personnel Management will require that, unless an exception has been granted, federal hiring agencies cannot inquire into an applicant’s criminal history or adverse credit information until after a conditional offer of employment has been made.  This federal initiative is consistent with, and provides a timely reminder of, the many states and localities that have enacted “ban the box” laws which also require that investigations into an applicant’s criminal history be delayed until after an initial interview has been completed or a conditional offer made to the applicant. 

The rule appears to be a further attempt to broaden the policy of encouraging individuals from all walks of life, including those with criminal and adverse credit histories, to apply for federal positions and to assist federal agencies in complying with the Merit System Principles, the Federal Interagency Reentry Council goals, and the President’s Memorandum of April 29, 2016, entitled “Promoting Rehabilitation of Formerly Incarcerated Individuals.”  According to OPM, the rule only affects the timing of an investigation into an applicant’s criminal or credit history background – it does not affect how the background investigation is conducted or what information should be considered.   

In preparation for issuing its final rule, OPM elicited and received 25 sets of comments on its proposed rule.  The comments came from individuals, federal agencies, professional organizations, a trade association, a coalition of civic advocacy groups, and a private corporation.  The comments ranged from general opposition to and support of the rule to specific concerns related to, among others, the effect the rule will have on national security and concern that it will unnecessarily delay the hiring process.   

In addressing the comments, OPM distinguishes between two phases of the hiring process:  (1) the examination/assessment phase, during which an applicant’s competencies are assessed; and (2) at a later point in time, the suitability phase, during which an applicant’s eligibility for a position is adjudicated.  The examination/assessment phase should be conducted, according to OPM, without knowledge of the applicant’s criminal history so that the applicant will be fairly judged on his or her knowledge, skills, and abilities.  If these credentials satisfy the hiring agency, then the agency may examine the criminal history of the applicant as part of his or her character and conduct assessment.  OPM believes this dual-step process may encourage applicants who have been arrested, but not convicted, or applicants who have been convicted and rehabilitated, to apply for federal positions from which they otherwise would have felt excluded.  Moreover, according to OPM, no empirical evidence has been presented showing that the rule would have any effect on the time it takes to get a position with the federal government. 

If an applicant’s background is necessary in determining whether they are qualified for a position, then OPM notes that there is an exception process in place.  The hiring agency must request the exception prior to posting notice of the position and, if the exception is granted, the agency must include the background qualifications and assessment procedure as part of the job advertisement.  While the rule explicitly does not affect questions related to an applicant’s Selective Service registration, military service, citizenship status, or previous work history, OPM expressly declined to list conditions which must be present for an exception to be granted, as such conditions are not yet known by OPM.  Instead, OPM provided examples of some types of factors that may be considered, such as the nature of the position being filled and whether a clean criminal history is essential to the applicant’s performance. 

In examining commentators’ responses, OPM specifically declined to modify the parameters of the rule to allow for a criminal background check after an initial interview.  In its statements, OPM noted variations in how various agencies use interviews during the hiring process, including that some agencies do not interview and that others interview applicants more than once.  Thus, according to OPM, in an effort to bring consistency to the hiring process across federal agencies, the rule pushes the investigation into an applicant’s criminal and credit history until after a conditional offer has been made.