Federal Criminal History Hiring Rules
Federal law governs criminal history background checks for federal employment from two directions. First, it tells covered agencies — including DoD, State, DHS, OPM, CIA, and FBI — when and how they can access criminal history records for background investigations. Second, it tells federal agencies when they are prohibited from asking job applicants about their criminal history: not before a conditional job offer. The second set of rules is the federal government's version of "ban the box," and it applies across the Executive Branch.
Current Law (2026)
| Rule | Details |
|---|---|
| Pre-offer criminal history inquiry | Prohibited in all Executive agencies (with specific exceptions) |
| Exceptions to ban-the-box | Jobs requiring security clearance, sensitive national security positions, federal law enforcement officers, or OPM-designated positions |
| Penalty for first violation | Written warning placed in personnel file |
| Penalty for second violation | Suspension up to 7 days |
| Penalty for third violation | Suspension more than 7 days |
| Penalty for fourth violation | Suspension more than 7 days + civil penalty up to $250 |
| Penalty for fifth+ violation | Suspension more than 7 days + civil penalty up to $1,000 |
| Appeal period | 30 days after adverse action |
Legal Authority
- 5 U.S.C. § 9101 — Access to criminal history records for national security (covered federal agencies may obtain full criminal history records from state and local repositories for background investigations relating to security clearances, sensitive positions, military retention, public trust positions, and HSPD-12 credentialing; written consent of the subject is required; records may only be used for authorized purposes; states must allow both biometric and biographic searches; fees cannot exceed reasonable cost)
- 5 U.S.C. § 9201 — Definitions (defines "conditional offer" — an offer that depends on criminal history results; "criminal history record information" includes sealed and expunged records and juvenile records for ban-the-box purposes; "agency" covers all Executive agencies including USPS and the Executive Office of the President)
- 5 U.S.C. § 9202 — Limitations on pre-offer criminal history inquiries (federal agencies may not ask about criminal history — by form, verbal question, USAJOBS, or any other method — before making a conditional job offer; exceptions apply for positions requiring security clearances, federal law enforcement, and OPM-designated positions)
- 5 U.S.C. § 9203 — Agency policies and complaint procedures (OPM must publish compliance guidance for agency employees and complaint procedures for applicants)
- 5 U.S.C. § 9204 — Adverse action (OPM investigates violations; first offense is a written warning; subsequent offenses result in escalating suspensions and civil fines)
- 5 U.S.C. § 9205 — Appeal procedures (appeal must be available within 30 days; adverse actions are not appealable to the Merit Systems Protection Board or in court beyond OPM's own appeal process)
How It Works
The Fair Chance Act creates two separate legal regimes. Chapter 91 (5 U.S.C. § 9101) governs when the government can access criminal records for background checks — the rules allowing DoD, CIA, FBI, and similar agencies to pull criminal history from state databases. Chapter 92 (§§ 9201–9206) governs when the government can ask applicants about criminal history during hiring — the ban-the-box rules. Federal agencies cannot include criminal history questions on job applications, in USAJOBS postings, on OPM Form 306, or in any verbal or written screening before a conditional offer is extended, preventing criminal history from automatically screening people out before their qualifications can be evaluated. "Criminal history record information" for ban-the-box purposes is defined broadly: it includes records that have been sealed or expunged and information about juvenile delinquency analogous to an adult criminal record even if sealed, so an agency cannot ask about an expunged conviction or a juvenile record before the conditional offer stage.
Three categories of positions are exempt from the pre-offer ban: positions requiring a national security eligibility determination (security clearances, sensitive national security positions, armed forces retention); federal law enforcement officers defined under 18 U.S.C. § 115(c); and any positions OPM designates by regulation for roles involving interaction with minors, sensitive information, or financial transactions. A federal HR employee who asks a job applicant about criminal history before extending a conditional offer can be disciplined by OPM — first offense is a written warning in the personnel file, with subsequent violations escalating through suspensions and civil fines up to $1,000 per incident; these penalties are handled through OPM's internal process with no MSPB appeal. When a covered agency runs a security background investigation, state and local criminal justice repositories must provide full criminal records including sealed records, must allow both fingerprint-based and name-based searches, cannot charge fees exceeding actual cost, and require the subject's written consent; records obtained may only be used for those purposes or other authorized national security and criminal justice purposes.
How It Affects You
If you're applying for a federal job and have a criminal record: You do not have to disclose your criminal history on the initial application or during early screening. The ban-the-box rule means the agency cannot ask — by any method — until after a conditional offer. Once you receive a conditional offer and the background investigation begins, honesty is essential: providing false information on the SF-86 or related investigation forms is a separate federal crime that can result in prosecution, not just rejection.
If you have a sealed or expunged record: The ban-the-box rule protects you at the application stage — you cannot be asked, and you do not have to volunteer the information. However, federal background investigators conducting security investigations under § 9101 can access sealed and expunged records. The expungement does not erase the record for federal suitability determination purposes. Some positions may still be available to you depending on the nature of the offense, how long ago it occurred, and your rehabilitation record.
If you're a formerly incarcerated person considering federal employment: Federal agencies are explicitly prohibited from categorical rejection of applicants with criminal records — each case must be evaluated individually based on the nature of the offense, its relationship to the job, time elapsed, and evidence of rehabilitation. OPM's guidance requires agencies to conduct individualized assessments. Some agencies have more formal "second chance" hiring programs than others; USDA and DOL have historically been more active in this space.
If you work in federal HR: The ban-the-box rule creates personal liability for individual employees who violate it — not just agency liability. Asking about criminal history before a conditional offer can result in a written warning, suspension, and fines up to $1,000 per incident. OPM enforces this. Given the current pace of hiring in many agencies, the risk of inadvertent violations has increased. Review OPM's compliance checklist and ensure your job postings, interview guides, and USAJOBS listings don't include prohibited inquiries.
State Variations
The federal Fair Chance Act applies only to federal government hiring. Separately, many states and localities have enacted their own ban-the-box laws covering private employers and state/local governments:
- California: Statewide ban-the-box law (AB 1008) covers private employers with 5+ employees; requires individualized assessment before withdrawal of conditional offers
- New York: NYC Fair Chance Act is one of the most protective in the country — applies to nearly all employers, covers pending arrests as well as convictions
- Illinois: Statewide Human Rights Act amendment covers private employers; criminal history cannot be a per se disqualifier
- Federal contractors: Executive Order 13764 (Obama) required federal contractors to adopt similar ban-the-box practices; the order's status under subsequent administrations has varied
Federal preemption does not apply to state ban-the-box laws covering private employers.
Pending Legislation
- Fair Chance Reauthorization Act — Would strengthen OPM's enforcement authority and extend the Fair Chance Act's requirements to federal contractors beyond those already covered by executive order. Status: Introduced, 119th Congress.
- Clean Slate Act — Would create an automatic federal record expungement process for certain nonviolent federal offenses after a clean period. Would not change background investigation access, but would affect the pool of records visible to non-law-enforcement purposes. Status: Introduced.
Recent Developments
- Fair Chance Act implementation (since 2021): The Fair Chance Act (enacted December 2019) formally codified the federal ban-the-box rules at 5 U.S.C. §§ 9201–9206. OPM issued implementing regulations and compliance guidance in 2021, and the enforcement mechanism — personal civil penalties for violating HR staff — has been in effect since then. OPM has processed dozens of violation complaints since implementation, most resulting in warnings to individual HR employees.
- Federal hiring freeze and Fair Chance Act interaction: Executive orders in 2025 implemented broad federal hiring freezes with certain national security and law enforcement exceptions. The hiring freeze has significantly reduced the volume of new federal hiring, which also reduces the number of occasions on which ban-the-box protections can be violated — but it also reduces opportunities for individuals with criminal records to enter federal employment. Some advocates argue that the freeze disproportionately harms reentry populations who depend on federal "second chance" hiring programs.
- OPM enforcement posture: OPM's capacity to actively enforce the Fair Chance Act has been reduced by its own staffing cuts under DOGE. The agency's HR compliance functions — which include processing ban-the-box complaints — have been affected by the same workforce reductions that have hit other federal agencies.
- Suitability determinations for probationary employees: Many of the federal workers terminated in early 2025 were probationary employees who had passed initial suitability determinations. The mass terminations have raised questions about whether suitability standards were consistently applied — some advocacy groups have filed complaints arguing that terminated probationary employees with criminal records were singled out for earlier termination than similarly situated employees without records.