April is Second Chance Month, when we recognize the challenges that individuals with criminal records face in daily life and in seeking employment opportunities. More than 70 million Americans – disproportionately of Black and Hispanic individuals – have criminal records and face barriers when reentering the workforce and in obtaining gainful employment. Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after their release. Employment is an important factor in reducing recidivism. The Office of Federal Contract Compliance Programs (OFCCP) is committed to ensuring that workers with criminal histories have access to good jobs and do not face unlawful discrimination in the workplace.
OFCCP protects America’s workers by ensuring federal contractors and subcontractors are accountable for fulfilling the promise of nondiscrimination and affirmative action. OFCCP’s work advances equal opportunity by addressing barriers embedded in employment policies and practices.
In light of racial and ethnic disparities in our criminal justice system, contractors should be mindful of federal laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. The Fair Chance to Compete for Jobs Act of 2019 prohibits federal contractors (and federal agencies in all three branches of government) from inquiring into arrest and conviction history until they have made a conditional job offer to a candidate (with some exceptions).
The use of criminal records in hiring may violate Executive Order 11246. OFCCP enforces Executive Order 11246, which prohibits federal contractors from treating job applicants or employees with criminal records differently because of their race, color, religion, sex, sexual orientation, gender identity or national origin. Even where contractors apply criminal record exclusions uniformly, the exclusions may be unlawful if they disproportionately exclude people of a particular race or national origin and do not accurately predict who will be a responsible, reliable, or safe employee. OFCCP’s resources, including a directive and frequently asked questions, provide guidance to federal contractors on the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations.
Federal contractors also have an obligation to perform in-depth analyses of their total employment processes to determine whether and where impediments, such as discriminatory or unjustified criminal background checks to equal employment opportunity exist. If contractors identify problem areas, they must develop and execute action-oriented programs to correct them.
OFCCP has resolved several cases related to the unlawful use of criminal background checks. For example, in 2019, we found that Ford Motor Company failed to determine whether its criminal background check process was having an adverse impact on protected workers. Ford agreed, among other things, to maintain complete and accurate records of all steps in its application and selection process, and review and revise, as necessary, its criminal background check policy.