OPM Fair Chance Act — Federal Hiring Rules on Criminal History Background Checks

Legal Authority

• 5 U.S.C. § 9202 — Fair Chance to Compete for Jobs Act of 2019 (Title XI, NDAA FY 2020); prohibits federal agencies from requesting criminal history information from an applicant before extending a conditional offer of employment for covered positions
• 5 U.S.C. § 9204 — Enforcement authority; authorizes OPM to impose civil penalties and adverse employment actions against agency employees who violate the criminal history inquiry prohibition
• 5 CFR Part 920 — OPM implementing regulation for the substantive prohibition; defines "conditional offer," "covered position," and exemptions; prohibits oral, written, or electronic criminal history inquiries before a conditional offer
• 5 CFR Part 754 — OPM enforcement regulation; establishes applicant complaint programs, due process for employees facing adverse action, civil penalty procedures, and MSPB appeal rights

Key Mechanics

The Fair Chance to Compete for Jobs Act of 2019 (commonly "Ban the Box" for federal hiring) bars federal agencies from asking about an applicant's criminal history — including arrests, charges, convictions, or sentences — until after a conditional offer of employment has been extended. A conditional offer is one contingent only on completion of background investigation, suitability adjudication, medical review, or drug testing. The prohibition covers competitive service, excepted service, and SES positions; exempt positions exist where a statute expressly requires earlier inquiry, or OPM has designated the position for public safety, national security, or classified access reasons. Agencies are responsible for identifying exempt positions; the default rule is covered, not exempt. The prohibition extends to automated applicant tracking systems and pre-screening questionnaires — agencies must configure systems to suppress criminal history fields until the post-offer stage. If an applicant voluntarily discloses criminal history before a conditional offer, the agency may not act on that information until the post-offer suitability review stage. Enforcement runs on two tracks: applicants who believe the prohibition was violated file a complaint with the agency's complaint program (which must be publicly accessible) or with OPM; agency employees who committed the violation face OPM-imposed written warnings for first violations, and civil penalties or adverse actions for subsequent or egregious violations, with MSPB appeal rights for suspensions over 14 days.

Current Rule (2026)

What This Rule Does

Before the Fair Chance to Compete for Jobs Act of 2019 (commonly called "Ban the Box" for federal hiring), federal employers could ask about an applicant's criminal history at any point in the application process — including at the very first step, before any assessment of qualifications. This practice frequently screened out applicants with records before agencies could evaluate whether their qualifications made them the best person for the job.

The Fair Chance Act changed this by requiring federal agencies to delay criminal history inquiries until after a conditional job offer has been extended. Five CFR Part 754 implements the enforcement side of this statute: it establishes the complaint process for applicants who believe an agency asked about their criminal history too early, and the adverse action and appeal procedures for agency employees who violate the Act.

The rule has two subparts. Subpart A covers complaints from applicants — people who apply for federal jobs and believe an agency violated the delayed-inquiry requirement. Subpart B covers enforcement against the agency employees who committed the violation — OPM can issue warnings, impose civil penalties, and take other adverse actions against federal employees who unlawfully inquire into criminal history before a conditional offer.

Key Provisions — Applicant Complaints (Subpart A)

• § 754.101 — Scope: covers complaints from applicants for civil service positions about agency violations of 5 U.S.C. § 9202 — the prohibition on criminal history inquiries before a conditional offer; covers all civil service positions subject to the Fair Chance Act
• § 754.102 — Agency complaint programs: each covered agency must establish, within 90 days of the rule's effective date, an accessible complaint program for receiving applicant complaints; the program must be publicized to applicants; agencies must also accept complaints on behalf of OPM
• § 754.103 — Representation: an applicant may designate a representative of their choice to assist during the complaint process; the agency may disqualify a representative whose activities would cause a conflict of interest

Key Provisions — Employee Adverse Actions (Subpart B)

• § 754.201 — Scope: covers adverse actions against agency employees who violate 5 U.S.C. § 9202 and Part 920; "employee" has the meaning in 5 CFR § 920.101; "civil penalty" means a monetary penalty OPM imposes on a violating employee
• § 754.202 — Adverse action authority: when OPM's Director or designee determines that an employee violated the criminal history inquiry prohibition and the employee received required procedural rights, OPM may issue a written warning for a first violation; subsequent violations or egregious cases may result in civil penalties
• § 754.203 — Due process: employees against whom OPM proposes adverse action receive at least 30 days' advance written notice stating the specific reason(s) for the proposed action; notice must inform the employee of their right to review the underlying materials, the right to respond in writing, and the right to an oral reply; the employee has the opportunity to respond before OPM issues a final decision
• § 754.204 — Appeals: an employee subjected to a suspension of more than 14 days or a combined suspension and civil penalty may appeal to the Merit Systems Protection Board under MSPB regulations; lesser actions (warnings, short suspensions) are not appealable to MSPB
• § 754.205 — Record: the complaint, applicant's supporting materials, agency's administrative file, notice of proposed action, employee's reply, and notice of decision must all be maintained in the official record

Implementing Regulations — Substantive Prohibition (5 CFR Part 920)

The substantive "ban the box" prohibition lives at 5 CFR Part 920 — Timing of Criminal History Inquiries, issued by OPM under 5 U.S.C. §§ 9202–9204. Part 920 establishes the actual restriction on when agencies may ask about criminal history; Part 754 (above) governs enforcement and appeals when agencies violate Part 920. Key provisions:

• § 920.101 — Definitions: "agency" includes all executive departments, government corporations, and independent agencies; "applicant" is any person who applies for a covered position, including for reinstatement or re-employment; "conditional offer" is an offer of employment contingent only on completion of suitability and security adjudication, fitness determinations, and medical or drug testing — agencies cannot add criminal history review as a condition at this stage; "covered position" means any position in the competitive service, excepted service, or SES unless a specific statutory authority requires criminal history inquiry at an earlier stage
• § 920.102 — Positions covered by Fair Chance Act regulations: applies to all competitive service, excepted service, and SES positions in an executive agency; exempt positions exist where: (a) a statute expressly requires that criminal history inquiry occur at the application stage, (b) OPM has identified the position as requiring inquiry before a conditional offer for public safety, national security, or law enforcement reasons, or (c) the position involves access to classified information at a level that requires pre-offer criminal history screening; exempt positions must be positively identified by the agency — the default rule is that positions are covered, not exempt
• § 920.201 — Limitations on criminal history inquiries: no agency employee may request — orally, in writing, or through any electronic form including OPM Optional Form 306 (Declaration for Federal Employment) or USAJOBS — any information about an applicant's criminal history prior to extending a conditional offer of employment for a covered position; this includes prohibitions on asking applicants to disclose arrests, charges, convictions, or sentences at any point in the application, screening, or interview process before a conditional offer; if an applicant voluntarily discloses criminal history information before a conditional offer, the agency may not act on that information until the post-offer suitability review stage
• § 920.202 — Violations: an employee violates Part 920 by requesting criminal history information at any time before a conditional offer for a covered position; a second or subsequent violation, or any particularly egregious first violation, may result in civil penalties under Part 754; agencies that incorporate impermissible criminal history questions in application forms, automated screening systems, or interview protocols are in systematic violation and may be subject to OPM compliance review and directed corrective action

Part 920 operates as the rule that OPM enforces through Part 754. The practical compliance question for agencies is straightforward: no criminal history questions before a conditional offer, for covered positions, period. The tricky cases involve automated systems — applicant tracking platforms that run background screens or ask criminal history questions as part of pre-screening questionnaires need to be configured to suppress these questions until after the conditional offer is extended. For applicants, the right under Part 920 is procedural: the agency cannot consider criminal history until after it has decided you are otherwise the best-qualified candidate for the position and made you an offer.

How It Affects You

If you are applying for a federal job and an agency asked you about your criminal history before extending you a conditional offer of employment, you may have grounds for a complaint under the Fair Chance Act. File a complaint with the agency's complaint program (which the agency must establish and publicize) or with OPM directly. The complaint is the first step toward OPM investigating whether the agency violated 5 U.S.C. § 9202.

What "conditional offer" means: Under the Fair Chance Act, agencies cannot inquire about criminal history until after they have made a conditional offer — meaning an offer that is conditional only on passing background investigation, medical review, and other post-offer checks. Asking about convictions or arrests on the initial application or during interviews before an offer violates the Act.

Exceptions exist: Some positions are exempt from the delayed-inquiry requirement, including law enforcement positions, national security-sensitive positions, positions where the individual will have access to classified information, and certain other positions OPM has designated. If you applied for an exempt position, the timing rules may not apply.

If you are a federal HR professional or hiring manager, you must understand when criminal history inquiries become permissible. Asking about criminal background during interviews, on application forms, or at any point before extending a conditional offer — for non-exempt positions — is a prohibited personnel practice. OPM can impose civil penalties and take adverse employment action against employees who violate the rule.

Agency HR offices must maintain an accessible complaint program. If your agency does not have a publicly accessible complaint process, it is out of compliance with § 754.102. The complaint program must be in place within 90 days of the rule's effective date and must be communicated to applicants as part of the hiring process.

Statutory Authority

This rule implements:

• 5 U.S.C. § 9202 — Fair Chance to Compete for Jobs Act of 2019 (Title XI of the National Defense Authorization Act for FY 2020); prohibits federal agencies and federal contractors from requesting criminal history information from an applicant before extending a conditional offer of employment
• 5 U.S.C. § 9204 — Enforcement authority; authorizes OPM to impose adverse actions and civil penalties on agency employees who violate the criminal history inquiry prohibition

Recent Rulemakings

Part 754 is a new rule implementing the Fair Chance to Compete for Jobs Act of 2019. No major amendments since initial promulgation.

Pending Action