Federal Manager's Daily Report

The MSPB has outlined steps for agency HR offices and hiring managers to comply with regulations OPM issued late in 2016 that generally prohibit agencies from inquiring about a job applicant’s criminal background until the agency has made a conditional offer of employment to the applicant.

That so-called “ban the box” policy refers to a real or theoretical box on a job application asking if a candidate has a criminal record.

MSPB noted that civil service law already had protected employees from discrimination based on conduct that does not adversely affect job performance, although agencies can take convictions into account when determining suitability for a job. “The act’s conference report noted that a conviction that has no bearing on job duties or job performance may not be the basis for discrimination for or against anyone,” it said.

It added that even under the OPM policy, agencies can request exceptions to ask about criminal background earlier in the process in certain circumstances. These include positions where the ability to testify as a witness is a requirement and thus a clean criminal history record would be essential to the ability to perform one of the duties of the position effectively, or where the expense of completing the employment examination would make it appropriate to adjudicate suitability at the outset of the process.

MSPB said that agencies make sure not to ask about applicants’ criminal background by inadvertently including the Optional Form 306 (Declaration for Federal Employment) or a similar agency form too early in the hiring process; determine what position or group of positions may need a waiver as soon as possible and request the waiver prior to the need for hiring those positions—and if a waiver is received, remember to note that criminal history will be reviewed as part of the qualification assessment in the vacancy announcement; and consider not discharging other highly qualified job applicants until a favorable suitability determination has been made on the applicant selected for the position.