‘Ban the Box’ hiring law now applies to U.S. Federal Contracts

Excerpted from a Bloomberg Law Blog by Paige Smith

Federal contractors no longer can inquire about an applicant’s criminal history before extending a conditional job offer to work on a government contract, a new prohibition that stems from a Trump-era defense policy law.

The restriction, tucked into the National Defense Authorization Act for Fiscal 2020, took effect Dec. 20, and a proposed rule that could guide compliance is expected to be released in coming days.

Attorneys who represent companies that do business with the federal government said the “ban the box” law won’t require major changes for many contractors because they already navigate a patchwork of similar state laws across the U.S.

“It’s just a lot easier, from an administrative standpoint, to go ahead and make that standard practice,” said Olaoluwaposi Oshinowo, special counsel with Wiley Rein LLP. “There shouldn’t be a heavy lift for most federal contractors to comply here.”

At least 16 states bar most employers from requiring job applicants to disclose a criminal record before a job offer has been extended, with some carveouts. Many localities do the same. Several other states have similar laws on the books, and others prohibit inquiries about sealed or expunged criminal records.

Yet in the absence of a regulation covering compliance questions, federal contractors still face uncertainty about how and when the law will be enforced and exactly which kinds of job openings could be exempt.

A draft report reflecting a proposed rule to amend the Federal Acquisition Regulation is slated for release by Jan. 5, according to an online listing and a spokesperson for the U.S. General Services Administration. The proposal will be subject to public comment and followed by a final rule, the spokesperson said.

Federal contractors employ about 25% of the country’s workforce, though many are likely already subject to some form of a “ban the box” law on the state or local level and won’t view the federal statute as a new development, said Lisa Lupion, a partner with Orrick Herrington & Sutcliffe LLP.

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