What is “Ban the Box”?
In 2016, the Office of Personnel Management (OPM) issued a proposal to “Ban the Box”—an approach to expand the pool of applicants for federal employment and “pursuing public policies that promote fairness and equality” and serving “as a model for all employers – both public and private.”
“Ban the box” refers to “delaying the point in the hiring process when agencies can inquire about an applicant’s criminal history until a conditional offer (of federal employment) is made. This change prevents candidates from being eliminated before they have a chance to demonstrate their qualifications.”
In other words, a new OPM rule was issued to encourage former convicts to apply for federal employment and also make it easier for them to obtain a federal job.
Rationale Behind the “Ban the Box” Rule
OPM wrote:
Each year, more than 600,000 people are released from Federal and State prisons, and millions more are released from local jails…Many face long-term, sometimes lifelong, impacts of a criminal record that prevent them from getting a job or accessing housing, higher education, loans, credit, and more. Such barriers hurt public safety, add costs to the taxpayer, and damage the fabric of our communities. 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.
(Inquiring into criminal history) may discourage motivated, well-qualified individuals who have served their time from applying for a Federal job. Early inquiries could also lead to the premature disqualification of otherwise eligible candidates, regardless of whether an arrest actually resulted in a conviction, or whether consideration of an applicant’s criminal history is justified by business necessity.
The final rule was issued on December 1, 2016.
New Rule Proposed to Enforce “Ban the Box”
OPM is now issuing a new proposed rule expanding the concept of “banning the box.”
The new rule addresses the timing for an agency to be able to check into an applicant’s criminal history information. The rule also establishes complaint procedures for applicants for a federal job to file a complaint. Finally, the proposed regulations outline adverse action procedures when it is alleged an agency employee violated these requirements.
The proposed rule directs covered agencies to establish a complaint process within 90 days of the effective date of the rule. It also requires the agency to complete the investigation within 60 calendar days of a complaint being filed.
Adverse Action For Federal Employees Checking Applicants’ Criminal History
Finally, the regulations outline adverse action procedures that will apply to federal employees when it is alleged that an agency employee has violated the requirements and appeal procedures for impacted applicants under the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act).
Creating a World-Class Federal Workforce
The “OPM Director’s Blog” quoted President Obama and explained how OPM was fulfilling this vision when the “ban the box” rule was proposed in 2016.
In a 2014 address, President Obama said: “To rise to meet the challenges of the 21st century, we need a Federal Workforce with the necessary skills, experience, and tools to meet its diverse mission now and in the future.” At the Office of Personnel Management (OPM), we work to fulfill this vision. Our mission is to help agencies recruit, retain, and honor a world-class Federal workforce to serve the American people.
OPM outlined its inspiration for this approach when the topic was proposed in 2016.
Banning the box for Federal hiring is an important step. It sends a clear signal to applicants, agencies, and employers across the country that the Federal Government is committed to making it easier for those who have paid their debts to society to successfully return to their communities, while staying true to the merit system principles that govern our civil service by promoting fair competition between applicants from all segments of society.
The Biden administration, using this new proposed expansion of “ban the box”, apparently intends to extend OPM’s earlier approach as articulated by President Obama “to help agencies recruit, retain, and honor a world-class Federal workforce….”
Time Limit for Comments
The comment period on the proposed rule expires on June 27, 2022. Comments can be sent to OPM through the Federal eRulemaking Portal at http://www.regulations.gov. All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number (RIN) for this proposed rulemaking.
Additional requirements and instructions are in the proposed rule.
“Ask Not What Your Country Can Do For You”
As history and social mores evolve, the approach to attracting new federal employees has changed. Comparing the current approach to one used by an earlier approach by Democrats to creating a world-class federal workforce, there is a significant difference.
The Kennedy administration sought to encourage the highest qualified applicants based on giving “people the idea that working for government was a higher calling.”
President John F. Kennedy was inaugurated on January 21, 1961. The new, 43-year-old president asked Americans to stiffen their upper lips and tighten their belts.
Despite the call for sacrifice, the speech was optimistic. In a phrase that struck a chord for many, he said in his inaugural speech to “Ask not what your country can do for you — ask what you can do for your country.” His call to sacrifice over seeking self-satisfaction earned near-universal praise.
His message in the midst of the “cold war” stated his philosophy: “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”
Once in office, the new president’s approval rating continued to go higher. It hit 83% in 1961 and remained in the high 70s or at 80% over the following year.
The Kennedy administration was known for hiring the “best and brightest” to work in government. The oft-cited phrase from his inaugural address impressed many young Americans as a duty of citizenship in an optimistic tone.
His approach rallied an army of young people to seek federal government service. The optimism drew many young Americans and drew them into the ranks of federal employees, and during his time in office, the number of executive-branch employees grew by more than 85,000.
This approach worked. By 1975, more than 20% of the federal workforce was under 30—including many who went to work for the Peace Corps—one result of his philosophy of encouraging young people to apply for federal service jobs.
More than 60 years after Kennedy’s emphasis on public service, very few federal employees hired in that era are still working for Uncle Sam, although the inspiration and optimism remained as many young people continued to seek federal employment extending at least through the 1960s.
Will The Biden/Obama Approach Create a World-Class Federal Workforce?
The Kennedy rhetoric was inspirational and memorable. It was a positive approach and many young Americans were inspired and sought out government service as a result. The federal government was thought of as employing the “best and brightest” Americans as a way of creating a better, more effective federal government.
The stronger enforcement approach of ignoring prior criminal convictions and applying an adverse action system to federal employees who do not follow the “ban the box” approach is more negative than equating public service with a higher calling or patriotic duty. No doubt, allowing and encouraging ex-cons to apply for federal employee jobs will expand the pool of potential federal workers.
Moreover, one should be skeptical that encouraging more ex-convicts to come to work for the federal government is the best approach to meeting President Obama’s mission “to help agencies recruit, retain, and honor a world-class Federal workforce to serve the American people.”
The soaring rhetoric of America’s new president in 1961 was inspirational, appealed to the patriotic impulses of many young Americans, and was effective. Those qualities are lacking in the stick now being employed to impose adverse action on federal employees who might check on an applicant’s prior criminal activity prior to an offer being extended.
On a personal note, I was much more motivated by President Kennedy’s patriotic call to federal service. I took the federal service entrance exam (FSEE) twice to reach a score that enabled me to become a federal employee. I felt good about the decision. I was just out of the Army after a two-year stint and becoming a civilian civil servant was a satisfying experience.
The chance to apply for a job as a former convict or the thought of working with many of those with a criminal background would not be inspirational. Perhaps it will be effective in accomplishing the administration’s objective of receiving applications “from all segments of society.” It is also likely to contribute to a less favorable image of the federal workforce and, perhaps, negatively impact attracting applicants with the highest potential for success in an organization.
