May 22, 2024

The Office of Personnel Management (OPM) recently released new guidance and an FAQ page. The OPM addressed the common concerns about implementing the 2019 Fair Chance to Compete for Jobs Act (Fair Chance Act). This new guidance intends to help employers, primarily federal departments and agencies, hire applicants with criminal histories.

Despite its introduction in 2016, the Fair Chance Act did not become law until 2019. Furthermore, the final implementation occurred after the OPM released regulations on September 1, 2023. These provisions made the Fair Chance Act fully effective but left many questions for those covered by the federal law.

How the Act Works

The Fair Chance Act restricts agencies’ and contractors’ ability to inquire about criminal history. Specifically, it determines when and how they can inquire into the applicant’s background. Usually, this step occurs during a background check for the hiring process.

In most cases, covered employers may request a criminal background check after offering conditional employment. The Fair Chance Ace also introduced a “ban-the-box” provision. It prohibited employers from including questions concerning criminal history on applications for covered positions.

Act Exemptions

This new Fair Chance Act guidance also outlined the conditions that qualify a position for exemption. These exceptions include:

  • “Require a hiring agency, by statutory authority, to make inquiries into an applicant’s criminal history before extending an offer of employment to the applicant;
  • Require a determination of eligibility for access to classified information;
  • Has been designated as a sensitive position under the Position Designation System issued by OPM and the Office of the Director of National Intelligence;
  • 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
  • Is a Federal law enforcement officer position meeting the definition in section 115(c) of title 18, U.S. Code.”

These exemptions only apply to criminal history information requests and not to other provisions like the ban-the-box requirements. Furthermore, employers should publicize these requirements for non-exempt positions. This step ensures that applicants know their rights.


In the FAQ, the guidance further clarified the following:

“Exceptions previously granted by OPM will remain valid for the position (title, series and grade) for which they were approved. With the approved exception, agencies are permitted to collect criminal history from applicants for the position ahead of [a] conditional offer, at the point specified in the agency’s request, so long as the job-related need for which the request was made continues to exist.”

Covered employers can take several steps to avoid violating the Fair Chance Act and ban-the-box provision. For example, they could create well-documented processes for the requirements and distribute them to employees. Conditional offers should also clearly establish when applicants may expect background checks.


Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.