§4657 — Title 10 Armed Forces | U.S. Code

Summary

Federal agencies cannot make a person or a sole proprietor who bids on a contract give their criminal record before the agency picks the apparent winner. A contractor who gets a federal contract must agree not to ask job applicants about their criminal history (by talking or in writing) until after the contractor gives a conditional job offer. There are limits. The rule does not apply if another law already requires a criminal check before a conditional offer. It also does not apply to jobs that need access to classified information, sensitive law‑enforcement or national security duties, or other jobs named by the Secretary of Defense. The Secretary of Defense must write rules within 16 months after the Fair Chance to Compete for Jobs Act of 2019 to list any additional exempt jobs, and those rules must follow federal civil‑rights laws. The Secretary must set up a way for applicants to file complaints. If a contractor breaks the rule, the Secretary will notify them, give 30 days to appeal, issue a warning, and for repeat violations may require fixes, demand a 30‑day compliance response, or suspend contract payments until the contractor complies. "Conditional offer" means a job offer that depends on the result of a criminal check. "Criminal history record information" uses the legal definition in 5 U.S.C. 9201.

Title 10, §4657

Armed Forces — Source: USLM XML via OLRC

(a)(1)Except as provided in paragraphs (2) and (3), the head of an agency—

(A)may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and

(B)shall require as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally or through written form request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before such contractor extends a conditional offer to the applicant.

(2)The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.

(3)(A)The prohibition under paragraph (1) does not apply with respect to—

(i)a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or

(ii)a position that the Secretary of Defense identifies under the regulations issued under subparagraph (B).

(B)(i)Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Secretary of Defense, in consultation with the Administrator of General Services, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.

(ii)The regulations issued under clause (i) shall—

(I)be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and

(II)ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.

(b)The Secretary of Defense shall establish and publish procedures under which an applicant for a position with a Department of Defense contractor may submit a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B).

(c)(1)If the Secretary of Defense determines that a contractor has violated subsection (a)(1)(B), the Secretary shall—

(A)notify the contractor;

(B)provide 30 days after such notification for the contractor to appeal the determination; and

(C)issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.

(2)If the Secretary of Defense determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), the Secretary shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractor’s history of violations, including—

(A)providing written guidance to the contractor that the contractor’s eligibility for contracts requires compliance with this section;

(B)requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and

(C)suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section.

(d)In this section:

(1)The term “conditional offer” means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry.

(2)The term “criminal history record information” has the meaning given that term in section 9201 of title 5.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019. The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§ 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see

Short Title

note set out under section 2000a of Title 42 and Tables.

Prior Provisions

A prior section 4657 was renumbered section 7657 of this title.

Amendments

2021—Pub. L. 116–283 renumbered section 2339 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date

of 2021 AmendmentAmendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date

Pub. L. 116–92, div. A, title XI, § 1123(b)(2), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, § 1862(c)(3)(A), Jan. 1, 2021, 134 Stat. 4278, provided that: “section 4657(a) of title 10, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the

Effective Date

described in section 1122(b)(2) of this subtitle [2 years after Dec. 20, 2019, see

Effective Date

note set out under section 9202 of Title 5, Government Organization and Employees].” Revisions to Federal Acquisition Regulation Pub. L. 116–92, div. A, title XI, § 1123(c), Dec. 20, 2019, 133 Stat. 1614, as amended by Pub. L. 116–283, div. A, title XVIII, § 1862(c)(3)(B), Jan. 1, 2021, 134 Stat. 4278, provided that: “(1) In general.—Not later than 18 months after the date of enactment of this subtitle [Dec. 20, 2019], the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to implement section 4714 of title 41, United States Code, and section 4657 of title 10, United States Code, as added by this section. “(2) Consistency with office of personnel management

Regulations

.—The Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation under paragraph (1) to be consistent with the

Regulations

issued by the Director of the Office of Personnel Management under section 1122(b)(1) [5 U.S.C. 9201 note] to the maximum extent practicable. The Council shall include together with such revision an explanation of any substantive modification of the Office of Personnel Management

Regulations

, including an explanation of how such modification will more effectively implement the rights and protections under this section.”

§4657 Prohibition on criminal history inquiries by contractors prior to conditional offer

Summary

Title 10, §4657

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Prior Provisions

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Effective Date

Regulations

Regulations

Regulations

Citations & Metadata