Ex-Cons and Federal Employment

By on May 1, 2016 in Human Resources with 53 Comments

Image of words "ban the box" with checkmark next to question "Have you ever been convicted?"

Federal human resources (HR) offices (or the current designation for the organization in your agency that hires new employees and performs other traditional human resources functions) are likely have a new task facing them in the near future.

President Kennedy rallied an army of young people to federal government service and then put them to work. The administration succeeded in attracting many young people into the ranks of federal employees. By 1975, more than 20% of the federal workforce was under 30.

The Obama campaign, channeling the Kennedy mystique, promised to “make government cool again“. Presidential adviser Valerie Jarrett said, “Obama wants to set a tone of public service in the true sense of the word. That will be a catalyst for drawing people into government and also for rejuvenating people who are there” she told a meeting of black journalists according to the Washington Post.

While President Kennedy’s catalyst was to recruit the “best and the brightest” of young Americans and to “Ask not what your country can do for you, but what you can do for your country”, the Obama administration is trying a different approach in hiring new federal employees.

OPM is expanding the range of potential applicants for federal employment to include those with a criminal history. It remains to be seen whether this new development is a “thinking outside the box” approach to appeal to young Americans that will yield positive results or it means the “making government cool again” campaign promise is just a slogan that sounded useful at the time remains to be seen. Take this survey on this issue.

The Office of Personnel Management (OPM) is publishing a proposed rule designed for “Enhancing safeguards to prevent the undue denial of federal employment opportunities to the unemployed and those facing financial difficulty through no fault of their own.”

That sentence can mean many things depending on the objective. In this instance, the bureaucratic phraseology is defined by OPM as ensuring “that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.”

Will hiring ex-convicts or others with criminal conduct in their past to become new federal employees improve the efficiency and effectiveness of government? OPM is confident that it will do this because considering criminal conduct in the federal job application process can “hurt public safety, add costs to the taxpayer, and damage the fabric of our communities.”

The first reaction for many people is likely to be a negative response on the theory that a history of criminal conduct could lead to problems in accomplishing the mission of federal agencies. Perhaps OPM is correct in its skepticism on the long time practice of agencies to consider criminal conduct in the federal hiring process. We are likely to find out as the result of a proposed federal rule applies a different social theory of human behavior to the federal hiring process.

In the meantime, readers who may have an opinion for or against this proposed rule or who would be impacted by such a rule and care to opine before it becomes final are allowed to “send, deliver, or fax comments to Kimberly A. Holden, Deputy Associate Director for Recruitment and Hiring, U.S. Office of Personnel Management, Room 6351D, 1900 E Street, NW., Washington, DC 20415-9700; e-mail at employ@opm.gov; or fax at (202) 606-4430.”

Current regulations allow an agency to determine the suitability of a federal job applicant at anytime during the hiring process. Criminal conduct of an applicant is one factor that is considered in the hiring process. Some agencies use a form ( Optional Form 306: “Declaration for Federal Employment”) as a way of collecting information on a prospective federal employee.

Here is what the proposed rule would require and the administration’s reasoning underlying the proposed changes.

  1. The OF-306 form includes “questions about an applicant’s criminal history, including past convictions or current arrests that were not yet the subject of a final disposition” according to the proposed rule. Some agencies use this form early in the hiring process, presumably to more efficiently weed out applicants that will not meet the requirements for the job being filled. But, while it may be more efficient, this is not a good practice according to those in OPM interested in substituting  a different hiring philosophy.  “The better practice, and one that many agencies already employ, is to wait until the later stages of the hiring process to collect this kind of information.”
  2. OPM is proposing to prohibit using the OF-306, “or otherwise making inquiries into an applicant’s background of the sort asked on the OF- 306’s ‘Background Information’ section or other forms used to conduct suitability investigations for Federal employment, unless the hiring agency has made a conditional offer of employment to the applicant.”
  3.  Not collecting information on criminal behavior until later in the hiring process is beneficial, as “Removing these barriers and promoting the rehabilitation and reintegration of people who have paid their debt to society is a critical piece of the Administration’s efforts to make the nation’s criminal justice system more fair and effective.”
  4. The proposed rule would require that agencies would generally not be allowed to gather information on an applicant’s criminal history until a conditional offer of federal employment has been made. According to OPM Director Beth Cobert, “This change prevents candidates from being eliminated before they have a chance to demonstrate their qualifications.”
  5. An agency that seeks information on any criminal background of a job application “might discourage them from applying for a Federal job and limit their opportunities to obtain the means to secure stable housing, provide support for their families, and contribute to their communities.”
  6. “Efficiency of the service” and suitability for federal employment are still considerations in the hiring process. Early inquiries about criminal conduct could “result in the disqualification of an otherwise eligible and qualified applicant solely on the basis of his or her criminal history – regardless of whether an arrest has actually resulted in charges or a conviction, and regardless of whether consideration of the applicant’s criminal history is justified by business necessity…(and) whether the suitability action will protect the integrity or promote the efficiency of the service.”
  7. The proposed rule would allow agencies to request exceptions to this proposed rule “where there are legitimate, specifically job-related reasons why agencies might wish to disqualify candidates based on their criminal history.”

Do you have an opinion on the proposed rule? Take this survey to share your feedback

Convictions and Federal Employment

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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