Sec. 802. Restrictions on use of criminal records to disqualify individuals from employment, occupational licensing, or occupational certification

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Section 534 of title 28, United States Code, is amended by adding at the end the following: In this subsection— the term covered entity means— an occupational licensing authority; an occupational certification authority; and an employer or third-party entity that is authorized by Federal or State law, including title II of the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, 1973 ( Public Law 92–544 ; 86 Stat. 1114), to access the records system created under this section for employment purposes; the term directly related conviction , with respect to an individual, means a conviction of the individual that a covered entity determines to have a direct and specific negative bearing on the ability of the individual to perform the duties or responsibilities necessary for— the position in which employment is sought; or the occupation for which an occupational license or certification is sought; the term qualifying background check law means a law that imposes the requirements described in paragraph (3); and the term record means a record or other information acquired, collected, classified, or preserved by the Attorney General under paragraph (1), (2), or

(3)of subsection (a). An agency or official of a State may not request or access a record, including on behalf of a private entity, under any authority, unless the State has enacted a qualifying background check law or a law that is more favorable to an individual with a criminal history than a qualifying background check law. An agency or official of a political subdivision of a State may not request or access a record, including on behalf of a private entity, under any authority unless the political subdivision or the State has enacted a qualifying background check law or a law that is more favorable to an individual with a criminal history than a qualifying background check law. A qualifying background check law shall provide that a covered entity may not consider any of the following criminal history information in determining whether to disqualify an individual from employment, an occupational license, or an occupational certification: A conviction that is not a directly related conviction. Non-conviction information, including information related to— a deferred adjudication; participation in a diversion program; an arrest not followed by a valid conviction; or an infraction. A conviction that has been sealed, dismissed, expunged, or pardoned. A juvenile adjudication. A misdemeanor conviction for which no sentence of imprisonment can be imposed. A misdemeanor conviction that is more than 1 year old, excluding any period of incarceration or custody. A felony conviction that is more than 5 years old, excluding any period of incarceration or custody. Green factors A qualifying background check law shall provide that a covered entity, in determining whether to disqualify an individual from employment, an occupational license, or an occupational certification based on a directly related conviction, shall consider— the nature and gravity of the conviction; the period of time that has elapsed since the conviction or, if applicable, completion of the sentence; and the nature of the employment, license, or certification held or sought. A qualifying background check law shall provide that a covered entity may not disqualify an individual from employment, an occupational license, or an occupational certification solely or in part because of a directly related conviction if the individual can establish sufficient mitigation or rehabilitation and fitness to perform the duties of the position or occupation by providing— evidence showing that— not less than 1 year has elapsed since the individual was released from any correctional institution without subsequent conviction of a crime; and the individual has complied with all terms and conditions of probation or parole; or any other evidence of mitigation and present fitness, including— the circumstances relating to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense; the age of the individual when the individual committed the offense; the period of time that has elapsed since the individual committed the offense; evidence of work history, particularly any training or work experience related to the position or occupation; additional evidence of educational, training, or work activities that the individual has participated in, including during any period of incarceration; letters of reference by persons who have been in contact with the individual since the individual was released from any correctional institution; and completion of, or active participation in, rehabilitative drug or alcohol treatment. A qualifying background check law shall provide that if a covered entity intends to disqualify an individual from employment, an occupational license, or an occupational certification solely or in part because of a directly related conviction, the covered entity shall, prior to making a final decision— notify the individual in writing of— the directly related conviction that forms the basis for the potential disqualification; and the rationale for how the conviction is directly related to the position or occupation; provide the individual a copy of the conviction history report, if any, on which the covered entity relies; and provide the individual examples of mitigation or rehabilitation evidence (as described in subparagraph (C)) that the individual may voluntarily provide. A qualifying background check law shall provide that not later than 30 days after the date on which an individual receives a notice of potential disqualification described in clause (i), the individual may respond to the notice by— challenging the accuracy of the conviction history report; or submitting evidence of mitigation or rehabilitation. A qualifying background check law shall provide that a covered entity shall make a final decision based on an individualized assessment of the information described in subparagraph (C), including any information described in clause

(ii)of this subparagraph submitted by the individual. A qualifying background check law shall provide that if a covered entity disqualifies an individual from employment, an occupational license, or an occupational certification solely or in part because of a directly related conviction, the covered entity shall notify the individual in writing of— the final decision, including— a list of each directly related conviction that forms the basis for the decision; and the rationale for how the conviction is directly related to the position; additional appeal procedures, if any, including opportunities for administrative or judicial review; and the earliest date on which the individual may reapply for the employment, occupational license, or occupational certification. A qualifying background check law shall provide that a covered entity shall— adopt education and outreach policies developed with the input of key stakeholders, including individuals with arrest and conviction records; explain to the public (including on the website of the covered entity, if applicable) how the covered entity uses criminal history information in making decisions with respect to employment, occupational licensing, or occupational certification, as applicable; and offer individuals access at any time (including before obtaining any required education or training) to guidance on the impact of a conviction or arrest on the application process for employment, occupational licensing, or occupational certification, as applicable. Not later than 180 days after the date on which this subsection takes effect, and semiannually thereafter, the Attorney General shall review the compliance of States and political subdivisions thereof with the requirement under paragraph (2). . Notwithstanding any other provision of law, other than a provision described in subparagraph (B), consideration of the criminal history information of an individual for purposes of employment, occupational licensing, or occupational certification of the individual, or any similar purpose, that is required or authorized under any provision of Federal law shall be carried out in accordance with the requirements described in section 534(g)(3) of title 28, United States Code, as added by subsection (a). Subparagraph

(A)shall not apply to the consideration of the criminal history information of an individual under any provision of law governing— Federal employment; the Armed Forces; law enforcement; or national security. Nothing in paragraph

(1)shall be construed to supersede any other provision of Federal law that imposes requirements relating to the availability and use of criminal history information that is more favorable to an individual with a criminal history than the requirements described in section 534(g)(3) of title 28, United States Code, as added by subsection (a). Not later than 180 days after the date of enactment of this Act, the head of an agency that administers a provision of law affected by paragraph

(1)shall promulgate any regulations necessary to comply with that paragraph. Subsections

(a)and (b)(1), the amendments made by those subsections, and the regulations promulgated under subsection (b)(3) shall take effect on the date that is 1 year after the date of enactment of this Act.

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Pub. L. 92-544
86 Stat. 1114

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Sec. 802

Restrictions on use of criminal records to disqualify individuals from employment, occupational licensing, or occupational certification

Pub. L.Pub. L. 92-544

Stat.86 Stat. 1114

Cites 2Cited by 0 across 0 sources