New guidance from the Office of Personnel Management would allow agencies to exempt a rule prohibiting them from a requesting an applicant's criminal or financial background until after a conditional job offer has been made.

The rule, "Recruitment, Selection, and Placement (General)" and "Suitability," is an Obama-era measure designed to open federal employment to applicants who have been shut out of the government due to prior incarcerations.

Related: Read the guidance

Under the rule, agencies can request an applicant's criminal or adverse credit history only after they make a conditional offer of employment.

Though the rule was finalized on Jan. 3, agencies have until March 31 to be in compliance with it, allowing a window of time for them to request the exemptions.

The Feb. 15 guidance allows agencies to request the information earlier if agencies can establish with OPM job-related reasons why they would need to request the information earlier, such as if the applicant is seeking a job where "the ability to testify as a witness is a requirement of the position, and thus a clean criminal history record would be essential to the ability to perform one of the duties of the position effectively."

Agencies seeking an exemption have to provide the information to OPM including:

  • A thorough explanation as to why the agency needs this exception, including why the agency in question needs to evaluate the information earlier in the process or why it is considering disqualifying the applicant as a result of the information.
  • Details on what part of the hiring process the agency currently collects the background information and when it proposes to in the future.
  • The processes the agency will use to ensure that the information obtained is "is accurate, relevant, timely, and complete."
  • Information on the number of vacancies and applicants affected by this change.

Agencies granted exemptions will not be required to submit subsequent exemptions for the position there after and can rescind the exemption when they choose to.

Compliance questions can be answered by Michael Gilmore at

or (202) 606-2429.