2020

On December 17, 2019, the Senate passed the National Defense Authorization Act (NDAA) for Fiscal Year 2020, which was subsequently signed by the President. 

As part of the NDAA, the government enacted the Fair Chance to Compete for Jobs Act of 2019 (the Fair Chance Act or Act), which prohibits federal agencies and federal contractors from requesting criminal background information from job applicants prior to extending an offer, with a few exceptions. The Fair Chance Act goes into effect on December 20, 2021.

What is the Fair Chance Act?

The Fair Chance Act is a federal extension of the “ban-the-box” laws that have been enacted in various states and localities in the past few years. Under the Act, federal contractors may not request information relating to criminal history, verbally or in writing, for positions “related to work under [the] contract” before the contractor extends a conditional offer to the applicant.

The law provides three exceptions as follows:

1. if consideration of criminal history record information prior to a conditional offer is required by law;
2. the position at issue would have access to classified information or have sensitive law enforcement or national security duties; or
3. the position is identified as excepted by the Administrator of General Services (or, in the case of defense contracts, by the Secretary of Defense).

Positions are set to be identified by the Administrator of General Services and the Secretary of Defense by April 2021 and should be limited to positions that “involve interaction with minors, access to sensitive information, or managing financial transactions.”

Consequences of Non-Compliance

Although compliance procedures are forthcoming, the Fair Chance Act sets forth progressive penalties for violations, up to and including suspension of payment for a repeated offense. A first violation carries with it a written warning followed by a notice to comply.  Subsequent violations include requiring the contractor to provide assurances that they are coming into compliance and/or suspension of payment on the contract until compliance is demonstrated.

Implications for Federal Contractors

Contractors should follow best practices to ensure they are compliant with current laws and are proactively preparing to be Act compliant.  Even though the Fair Chance Actdoes not go into effect until December 2021, current best practice is to refrain from asking about criminal convictions until a conditional offer has been made, given state law requirements and the Equal Employment Opportunity Commission’s focus on employment actions that result in a disparate impact to minority applicants.  All employers should consider taking the following measures:

• review hiring practices and onboarding materials, including application forms, checklists, and policies;
• offer periodic training to those involved in the recruiting and hiring processes; and
• determine how best to implement a policy (or policies) to comply with all applicable federal, state and local laws.

Leaders in the Minnesota House and Senate said Wednesday they are open to changing a state law that asks applicants to jobs on state boards and commissions whether they are a felon.

Last month, MinnPost reported the law is a rare exception to another statute prohibiting public and private employers from inquiring about criminal history before an applicant has been selected for an interview or received a conditional employment offer. Known as “ban the box,” the law’s intent is to prevent employers from screening out ex-offenders before they get a chance to have an interview. 

Senate Majority Leader Paul Gazelka, R-Nisswa, told reporters he had concerns that ban-the-box laws actually hurt the chances of employment for people of color, but said closing the exemption is “worth pursuing.” House Speaker Melissa Hortman, a DFLer from Brooklyn Park, said the felony question should end. “If it’s a loophole we need to get rid of it,” she said.

Minnesota blocked public employers from putting a criminal history check on job applications in 2009. A few years later, in 2013, the Legislature extended that prohibition to cover private employers.

While Minnesota was early to the trend, 35 states now have some form of the ban-the-box law, which has been embraced as a criminal justice measure by powerful conservatives like the billionaire Charles Koch and his late brother David, as well as Democrats such as Barack Obama.

Minnesota’s version of the law has exemptions for positions that legally require some form of a background check, including jobs at the Department of Corrections. But due to a 2004 law — passed without much apparent discussion in the Legislature — exemptions also include appointed positions on more than 200 boards and commissions.

The jobs range from largely unpaid spots on advisory councils to highly paid jobs on the powerful Public Utilities Commission and Metropolitan Council. Hundreds, if not thousands, of people apply to the positions each year, which are selected by the governor. Those applications, and responses to the felony question, are public records.

Supporters of ban the box told MinnPost leaving the exception in state law may have been an accidental oversight. Gov. Tim Walz echoed that Wednesday.

When asked by MinnPost in January about the felony question, Walz said it should be removed by the Legislature. On Wednesday, the DFLer told reporters at a media event held by Forum Communications Company that applicants’ answers to the criminal history check won’t sway his thinking, but could stop people “from even applying.”

The governor said he wants input from people with criminal histories, particularly on councils related to the justice system.

Hortman said she agreed with the governor’s stance. Gazelka, however, cited writing by Thomas Sowell, a Stanford economist who argues that employers who can’t ask an applicant about their criminal history may screen people of color from employment more often because they assume minorities are more likely to break the law. “We need to be careful of what we’re trying to do” and make sure the law will “accomplish what we really wanted it to do,” Gazelka said.

There is research to back up the theory. One study published in August 2018 by researchers at Texas A&M University and the University of Oregon found state and local ban-the-box policies reduce the probability of employment for young black men without a college degree by 3.4 percent and for young Hispanic men without a college degree by 2.3 percentage points. Other experiments and research reach similar conclusions.

Yet conflicting research suggests ban-the-box laws work. Employment of people with criminal records increased by 33 percent after Washington, D.C., adopted a ban-the-box law, for instance, according to the National Employment Law Project.

Supporters of the policy argue it’s wrong to not adopt a ban-the-box law out of fear that employers will illegally discriminate against applicants because of their race. That happens with or without ban-the-box laws, wrote attorney Phil Hernandez in a 2017 online post for the NELP.

“If the most forceful argument against ban-the-box is that it exposes racial discrimination against young men of color, then our focus should be on expanding and enforcing anti-discrimination laws rather than unraveling policies that effectively serve people with criminal records,” Hernandez wrote.

Despite his concerns, Gazelka did not rule out extending Minnesota’s ban-the-box law to candidates for boards and commissions. “I’m certainly willing to discuss it,” he said.

The 2009 ban-the-box law was approved by Republican Gov. Tim Pawlenty and a DFL-controlled House and Senate.

Image: Minnpost/Peter Callaghan

Gone are days of unregulated and untethered data gathering. With the rolling out of the California Consumer Privacy Act, Canadian businesses are now finding themselves navigating a sea awash with a patchwork of extraterritorial legislation.

The laws are sometimes inconsistent, often vague, and certainly confusing. It has therefore become critical that companies understand their obligations under each of these major regimes, and to delineate the nuanced details between them. Failure to do so may result is severe fines.

In light of this, I have created a quick reference guide for companies looking to better understand their legal obligations under GDPR, CCPA, and PIPEPA.

As this chart demonstrates, there are several differences between PIPEDA, GDPR and CCPA. Some differences are slight, while others are more obvious. In any case, businesses need not only be aware of their privacy obligations but also take proactive measures to ensure compliance.

This means working hand in hand with your IT team to understand where your servers are, what kind of information your business is processing, and what kind of security measures are put in place.

It also means making sure your business is working together with competent legal counsel that understands the peculiarities of each law. With this in mind, and for more  information, please feel free contact me at michael.weinberger@siskinds.com.