5 U.S.C. § 9202 — Limitations on requests for criminal his-

Page 1292 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9201 ducted by the Department of Defense, the Office of Per- sonnel Management, or the Central Intelligence Agen- cy, for the purposes specified in paragraph (b)(1) of sec- tion 9101 of title 5, United States Code, as added by this Act.’’ TERMINATION DATE OF SUBSECTION (b)(3) OF THIS SECTION Pub. L. 100–453, title I, § 101(d), Sept. 29, 1988, 102 Stat. 1904, extended the expiration date provided in section 803(b) of Pub. L. 99–169, formerly set out below, until Dec. 31, 1989. Pub. L. 99–169, title VIII, § 803(b), Dec. 4, 1985, 99 Stat. 1011, provided that subsec. (b)(3) of this section expired three years after Dec. 4, 1985. REPORT TO CONGRESSIONAL COMMITTEES ON EFFECT OF PROVISIONS FOR INDEMNIFICATION AGREEMENTS Pub. L. 99–169, title VIII, § 803(a), Dec. 4, 1985, 99 Stat. 1010, as amended by Pub. L. 99–569, title IV, § 402(b), Oct. 27, 1986, 100 Stat. 3196, directed Department of Justice, within two years after Dec. 4, 1985, and after consulta- tion with Department of Defense, Office of Personnel Management, Central Intelligence Agency, and Federal Bureau of Investigation, to report to appropriate com- mittees of Congress concerning the effect of 5 U.S.C. 9101(b)(3), as added by this Act, including the effect of the absence of indemnification agreements upon States and localities not eligible under 5 U.S.C. 9101(b)(3) for such agreements. CHAPTER 92—PROHIBITION ON CRIMINAL HISTORY INQUIRIES PRIOR TO CONDI- TIONAL OFFER Sec. 9201. Definitions. 9202. Limitations on requests for criminal history record information. 9203. Agency policies; complaint procedures. 9204. Adverse action. 9205. Procedures. 9206. Rules of construction. § 9201. Definitions In this chapter— (1) the term ‘‘agency’’ means ‘‘Executive agency’’ as such term is defined in section 105 and includes— (A) the United States Postal Service and the Postal Regulatory Commission; and (B) the Executive Office of the President; (2) the term ‘‘appointing authority’’ means an employee in the executive branch of the Government of the United States that has au- thority to make appointments to positions in the civil service; (3) the term ‘‘conditional offer’’ means an offer of employment in a position in the civil service that is conditioned upon the results of a criminal history inquiry; (4) the term ‘‘criminal history record infor- mation’’— (A) except as provided in subparagraphs (B) and (C), has the meaning given the term in section 9101(a); (B) includes any information described in the first sentence of section 9101(a)(2) that has been sealed or expunged pursuant to law; and (C) includes information collected by a criminal justice agency, relating to an act or alleged act of juvenile delinquency, that is analogous to criminal history record in- formation (including such information that has been sealed or expunged pursuant to law); and (5) the term ‘‘suspension’’ has the meaning given the term in section 7501. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1605.) Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 116–92, div. A, title XI, § 1122(b)(1), Dec. 20, 2019, 133 Stat. 1607, provided that: ‘‘Not later than 1 year after the date of enactment of this subtitle [sub- title A of title XI of div. A of Pub. L. 116–92, approved Dec. 20, 2019], the Director of the Office of Personnel Management shall issue such regulations as are nec- essary to carry out chapter 92 of title 5, United States Code (as added by this subtitle).’’ § 9202. Limitations on requests for criminal his- tory record information (a) INQUIRIES PRIOR TO CONDITIONAL OFFER.— Except as provided in subsections (b) and (c), an employee of an agency may not request, in oral or written form (including through the Declara- tion for Federal Employment (Office of Per- sonnel Management Optional Form 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant. (b) OTHERWISE REQUIRED BY LAW.—The prohi- bition under subsection (a) shall not apply with respect to an applicant for a position in the civil service if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise re- quired by law. (c) EXCEPTION FOR CERTAIN POSITIONS.— (1) IN GENERAL.—The prohibition under sub- section (a) shall not apply with respect to an applicant for an appointment to a position— (A) that requires a determination of eligi- bility described in clause (i), (ii), or (iii) of section 9101(b)(1)(A); (B) as a Federal law enforcement officer (as defined in section 115(c) of title 18); or (C) identified by the Director of the Office of Personnel Management in the regulations issued under paragraph (2). (2) REGULATIONS.— (A) ISSUANCE.—The Director of the Office of Personnel Management shall issue regulations identifying additional positions with respect to which the prohibition under subsection (a) shall not apply, giving due consideration to positions that involve interaction with mi- nors, access to sensitive information, or man- aging financial transactions. (B) COMPLIANCE WITH CIVIL RIGHTS LAWS.— The regulations issued under subparagraph (A) shall— (i) be consistent with, and in no way super- sede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Fed- eral civil rights laws; and Page 1293 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9501 (ii) ensure that all hiring activities con- ducted pursuant to the regulations are con- ducted in a manner consistent with relevant Federal civil rights laws. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1606.) Editorial Notes REFERENCES IN TEXT The Civil Rights Act of 1964, referred to in subsec. (c)(2)(B)(i), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to sub- chapter VI (§ 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 116–92, div. A, title XI, subtitle B, § 1122(b)(2), Dec. 20, 2019, 133 Stat. 1608, provided that: ‘‘Section 9202 of title 5, United States Code (as added by this sub- title), shall take effect on the date that is 2 years after the date of enactment of this subtitle [Dec. 20, 2019].’’ § 9203. Agency policies; complaint procedures The Director of the Office of Personnel Man- agement shall— (1) develop, implement, and publish a policy to assist employees of agencies in complying with section 9202 and the regulations issued pursuant to such section; and (2) establish and publish procedures under which an applicant for an appointment to a position in the civil service may submit a complaint, or any other information, relating to compliance by an employee of an agency with section 9202. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1606.) § 9204. Adverse action (a) FIRST VIOLATION.—If the Director of the Of- fice of Personnel Management determines, after notice and an opportunity for a hearing on the record, that an employee of an agency has vio- lated section 9202, the Director shall— (1) issue to the employee a written warning that includes a description of the violation and the additional penalties that may apply for subsequent violations; and (2) file such warning in the employee’s offi- cial personnel record file. (b) SUBSEQUENT VIOLATIONS.—If the Director of the Office of Personnel Management determines, after notice and an opportunity for a hearing on the record, that an employee that was subject to subsection (a) has committed a subsequent vio- lation of section 9202, the Director may take the following action: (1) For a second violation, suspension of the employee for a period of not more than 7 days. (2) For a third violation, suspension of the employee for a period of more than 7 days. (3) For a fourth violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $250. (4) For a fifth violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $500. (5) For any subsequent violation— (A) suspension of the employee for a period of more than 7 days; and (B) a civil penalty against the employee in an amount that is not more than $1,000. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1606.) § 9205. Procedures (a) APPEALS.—The Director of the Office of Personnel Management shall by rule establish procedures providing for an appeal from any ad- verse action taken under section 9204 by not later than 30 days after the date of the action. (b) APPLICABILITY OF OTHER LAWS.—An ad- verse action taken under section 9204 (including a determination in an appeal from such an ac- tion under subsection (a) of this section) shall not be subject to— (1) the procedures under chapter 75; or (2) except as provided in subsection (a) of this section, appeal or judicial review. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1607.) § 9206. Rules of construction Nothing in this chapter may be construed to— (1) authorize any officer or employee of an agency to request the disclosure of informa- tion described under subparagraphs (B) and (C) of section 9201(4); or (2) create a private right of action for any person. (Added Pub. L. 116–92, div. A, title XI, § 1122(a), Dec. 20, 2019, 133 Stat. 1607.) Subpart I—Miscellaneous CHAPTER 95—PERSONNEL FLEXIBILITIES RELATING TO THE INTERNAL REVENUE SERVICE Sec. 9501. Internal Revenue Service personnel flexibili- ties. 9502. Pay authority for critical positions. 9503. Streamlined critical pay authority. 9504. Recruitment, retention, relocation incen- tives, and relocation expenses. 9505. Performance awards for senior executives. 9506. Limited appointments to career reserved Sen- ior Executive Service positions. 9507. Streamlined demonstration project author- ity. 9508. General workforce performance management system. 9509. General workforce classification and pay. 9510. General workforce staffing. § 9501. Internal Revenue Service personnel flexi- bilities (a) Any flexibilities provided by sections 9502 through 9510 of this chapter shall be exercised in a manner consistent with— (1) chapter 23 (relating to merit system prin- ciples and prohibited personnel practices);