RE: FAIR CHANCE ACT — Comments on Proposed Rule with Request for Comments, RIN 3206-AO00; 87 Fed.Reg. 24,885-24,903 (April 27, 2022)

To Whom It May Concern:

The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule with Request for Comments, as published in the Federal Register at 24,885-24,903 (April 27, 2022).  NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance workers’ rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees and federal job applicants. Thus, NELA has both an interest in any potential modifications to federal sector personnel regulations issued by OPM and extensive expertise regarding the practical impact of any proposed modifications.

The present proposed rule seeks to implement the Fair Chance Act, which is a “ban the box” statute.  On June 1, 2016, NELA (as part of a broad coalition of organizations) submitted comments to OPM in support of OPM’s original “ban the box” regulations, in response to 81 Fed. Reg. 26173 (May 2, 2016), RIN: 3206-AN25.[1] Those comments are attached. NELA stands by those prior comments. NELA continues to support ‘banning the box’ and strongly limiting agencies’ opportunities for excepting positions from the “ban the box” rules. NELA further supports OPM’s proposed new Part 754, which creates a compliance mechanism for aggrieved applicants affected by “ban the box” violations and disciplinary mechanisms for employees who continue to unlawfully require pre-offer of disclosure of criminal or credit history in violation of the Fair Chance Act.

Thank you for your consideration. If you have questions or wish to discuss these matters, please contact me.

Sincerely yours,

Laura M. Flegel
National Employment Lawyers Association
Director of Legislative & Public Policy

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[1] NELA’s prior comments are also available at http://civilrightsdocs.info/pdf/policy/letters/2016/The-Leadership-Conferences-Coalition-Sign-On-Comment-Letter-to-OPM-on-Ban-the-Box-Regulations-07-01-16.pdf.