OPM Announces Final Regulations to Implement Federal Ban-the-Box Law

September 08, 2023

The Office of Personnel Management (OPM) recently announced new regulations concerning federal agencies and contractors. According to the announcement, they can no longer inquire about a candidate’s criminal background before making an offer of employment. This change stems from a piece of legislation from 2019 based on “Ban the Box” practices.

“Ban the Box” legislation like this intends to widen the pool of applicants while reducing potential hiring discrimination. Proponents argue that many applicants suffer disadvantages by disclosing their criminal record at that stage. They also claim that others are too intimidated to apply because they believe their background disqualifies them from public service.

Regardless of intention, some hiring managers have admitted that this knowledge influenced their decisions. As such, eliminating the need to disclose criminal records on applications would help those struggling with their criminal backgrounds. Removing this step in the early process allows potential applicants to sidestep these issues.

How It Works

Federal agencies and contractors may still withdraw conditional offers of employment. However, these new rules guarantee that candidates can compete on a level playing field. The rules do this by removing criminal histories from immediate consideration.

Employers may perform background checks on applicants after offering conditional employment. They may object to the candidate after this step. Furthermore, federal agencies and contractors should know these new regulations have exceptions. For example, the Act exempts sensitive law enforcement or classified work fields.

While these rules may be new, eliminating “the box” is not. Most federal job applications currently do not include questions about criminal background. Not even first-round interviews have such questions. A background check will usually occur shortly before beginning in the position. Thus, the new regulations mainly codify current federal hiring practices.

Candidates must complete a Declaration for Federal Employment, or OF-306, after receiving their conditional offer of employment. This form asks standardized questions about past convictions or ongoing charges. While applicants with criminal records are usually still eligible to be federally employed, a few specific convictions, such as treason, carry a permanent prohibition from federal employment.


The OPM will make these changes to reflect the Fair Chance to Compete for Jobs Act of 2019. This Act is bipartisan legislation passed as part of the National Defense Authorization Act for Fiscal Year 2020. The agency stated that these updates would stimulate federal agencies and contractors to offer applicants more information about the Act. For example, it provided complaint options for anyone who needs to object to their treatment.

These changes will apply to federal agencies and contractors. Affected employers should review their hiring policies and procedures to ensure compliance. Employers should work with an experienced employment background check provider. The right partner can advise them on their policies, deliver accurate and timely reports, and ensure a compliant hiring process.

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