In the latter half of 2016, the Office of Personnel Management (OPM) issued changes to the “Ban the Box” rule, which included prohibiting agencies and employers from inquiring about an applicant’s criminal history until the agency or employer has made a conditional offer of employment to the applicant. “Ban the Box” quite literally refers to removing the box on job applications asking if the applicant has a criminal record.
Now, the Merit Systems Protection Board (MSPB) has created guidelines that Human Resources agencies and hiring managers must comply with.
Employee Protection from Discrimination
Under the Civil Service Law, employees are protected from discrimination based on conduct that does not adversely affect their job performance. However, agencies and hiring managers can take convictions into account when determining an applicant’s suitability for a job. A conviction that has no bearing on job duties or performance may not be the basis for discrimination for or against anyone.
Even under OPM’s policy, agencies and employers can request exceptions to ask about criminal backgrounds earlier on in the process under specific circumstances. This includes positions where the ability to testify as a witness is a requirement, and therefore, a clean criminal history is necessary to perform one or more of the job duties effectively.
Optional Form 306: Declaration for Federal Employment
Agencies can make sure not to ask about applicants’ criminal records by inadvertently including the Optional Form 306 (Declaration for Federal Employment), or a similar agency form too early in the hiring process. Agencies and employers should determine whether or not a position(s) might need a waiver as soon as possible and request that waiver prior to the need for hiring these positions. If a waiver is received, it should be noted that criminal history will be reviewed as part of the qualification assessment in the vacancy announcement. Other highly qualified job applicants should not be discharged until a favorable suitability determination has been made on the applicant selected for the position.