Fair Chance Act obligations for federal contractors


As of December 20, 2021, federal contractors must comply with the Federal Fair Chance Act (FCA), which prohibits contractors from inquiring about a job seeker’s criminal history in certain cases in the early stages. of the application process, even as regulatory revisions on the “Ban-the-box law has not yet been published.”


The goal of the FCA is to ensure that employers’ hiring decisions focus first on the qualifications and abilities of applicants, rather than on selecting applicants who are otherwise qualified due to their criminal background.

The federal law on entrepreneurs, passed on December 20, 2019, is not as simple as it seems. The FCA expects the General Service Administrator and Secretary of Defense to issue regulations providing additional exemptions from the FCA by April 20, 2021. Additionally, the National Defense Authorization Act (NDAA) of 2020, in under which the FCA was enacted, orders The Federal Acquisition Regulatory (FAR) Council must revise the Federal Acquisition Regulation to implement the FCA by June 20, 2021. The FAR Council’s revision plans were originally due to be completed d ‘by May 27, 2020, but that deadline has been extended to January 5, 2022. At the time of this writing, however, these regulatory revisions have not been released.

Contracts, contractors covered

The FCA covers civil agency contracts (41 USC §4714) and defense contracts (10 USC §2338). Both laws generally use the same language, in section (a) (1) (B), for the prohibition. They predict that the government “will require, as a condition of obtaining a [f]general contract and receive payments under such a contract that the contractor cannot verbally, or in writing, request the disclosure of information on the “criminal records” of their candidates for positions performing work related to these contracts before making a conditional offer to the candidate.

In other words, covered contractors are generally prohibited from requesting criminal background information from job applicants for positions related to work related to federal contracts until such time as. after the entrepreneur extended the candidate with a conditional job offer.

In determining whether a federal contract is covered by the FCA, the FCA provides that a contractor’s consent to its terms is a condition of “to receive a [f]general contract and receive payments under Phone contract ”(emphasis added). In addition, the NDAA 2020 provides that the FCA prohibitions will only apply to “contracts awarded in accordance with the solicitations issued. after [December 20, 2021](Emphasis added). As a result, the FCA appears to be inapplicable to existing contracts concluded before December 20, 2021.

Covered positions

It is not clear how to determine whether the position is to perform work “connected with” work under the federal contract. The FCA does not define this. Consequently, this requirement has given rise to a broad interpretation of the positions concerned.

Once a contractor has determined that an open position is “tied to” a federal contract, they must determine whether the position falls under one of the three FCA exempt position categories (see section below) .

If a contractor has established a vacant position that is tied to a federal contract and does not benefit from any of the statutory exemptions, the employer must additionally ensure compliance with any state or local pre- or post-offer prohibitions or ” fair luck ”, including review of arrest or criminal conviction and individual assessment laws. The FCA is not changing the requirement that contractors comply with these obligations.

Exempt positions

Certain positions are exempt from the FCA, in particular:

  1. Positions where employers are required by law to consider applicants’ criminal backgrounds before extending a conditional offer,

  2. Positions related to national security or involving access to sensitive or classified law enforcement information, or

  3. Positions falling within an enumerated exception (that is to say, as may be covered by any regulations issued by the Secretary of Defense or General Service Administrator).


Compliance with the FCA should be a priority for current and potential federal contractors. The first FCA violation may result in a written warning and an obligation to remedy the violation, but subsequent violations may have more significant ramifications. For example, under the FCA, the contractor may be found to be ineligible to receive future federal contracts and the government may withhold payment for work performed on an existing contract until the contractor demonstrates compliance.

Jackson Lewis PC © 2022National Law Review, Volume XII, Number 9


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