§9202 — Title 5 Government Organization and Employees | U.S. Code

Summary

Federal agencies must not ask job applicants about their criminal history before making a conditional job offer. That ban covers spoken or written questions, forms (like OPM Form 306), USAJOBS, or any other electronic method. There are exceptions. Agencies can ask earlier if another law requires it. The ban also does not apply for jobs that need certain eligibility checks under clause (i), (ii), or (iii) of section 9101(b)(1)(A), for federal law enforcement officers (as defined in 18 U.S.C. 115(c)), or for jobs the Director of the Office of Personnel Management names by regulation. The OPM must consider jobs involving minors, sensitive information, or financial duties when making those rules, and the rules must follow Title VII (42 U.S.C. 2000e et seq.) and other federal civil rights laws.

Title 5, §9202

Government Organization and Employees — Source: USLM XML via OLRC

(a)Except as provided in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (Office of Personnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant.

(b)The prohibition under subsection (a) shall not apply with respect to an applicant for a position in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law.

(c)(1)The prohibition under subsection (a) shall not apply with respect to an applicant for an appointment to a position—

(A)that requires a determination of eligibility described in clause (i), (ii), or (iii) of section 9101(b)(1)(A);

(B)as a Federal law enforcement officer (as defined in section 115(c) of title 18); or

(C)identified by the Director of the Office of Personnel Management in the regulations issued under paragraph (2).

(2)(A)The Director of the Office of Personnel Management shall issue regulations identifying additional positions with respect to which the prohibition under subsection (a) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions.

(B)The regulations issued under subparagraph (A) 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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Civil Rights Act of 1964, referred to in subsec. (c)(2)(B)(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.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 116–92, div. A, title XI, subtitle B, § 1122(b)(2), Dec. 20, 2019, 133 Stat. 1608, provided that: “Section 9202 of title 5, United States Code (as added by this subtitle), shall take effect on the date that is 2 years after the date of enactment of this subtitle [Dec. 20, 2019].”

§9202 Limitations on Requests for Criminal History Record Information