Government Contractor Update – Ban the Box, Proposed Rule on Discrimination Resolution Procedures

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There were several recent developments of interest to government contractors, as follows.

  • Ban the Box. As part of the National Defense Authorization Act (NDAA), the Fair Chance to Compete for Jobs Act of 2019 prohibits federal contractors from requesting the criminal history of an applicant for work under a federal contract until after a conditional offer of employment has been made. (The “box” refers to the box on many employment applications, which must be checked if the applicant has a criminal record). There are exceptions where a criminal background check prior to the offer is required by law, where the position is related to law enforcement or national security duties, or where the position has access to classified information. The General Services Administration and Department of Defense must issue implementing regulations within 16 months of enactment, which occurred in December 2019.
  • Proposed Rule on Procedures to Resolve Discrimination. The Office of Federal Contract Compliance Programs has issued a proposed rule to setting forth procedures for resolving employment discrimination. Among other things, the proposed rule would:
    • Codify procedures for two formal notices that the OFCCP uses when it finds potential violations: the Predetermination Notice (PDN) and the Notice of Violation (NOV)
    • Clarify that contractors have the option of entering directly into a conciliation agreement prior to issuance of a PDN or NOV, thereby expediting the conclusion of a compliance evaluation
    • Clarify the strength of evidence required for the issuance of a PDN or NOV, by setting forth definitions of “statistical evidence” and “nonstatistical evidence.”

The brief public comment period closed on January 29, 2020. Once the OFCCP has reviewed the comments, a final rule will be issued.