April 23, 2019 – In collaboration with the Washington Lawyers’ Committee and the Lawyers’ Committee for Civil Rights Under Law, the Law Center filed a joint public comment opposing a rule change proposed by the Office of Personnel Management (OPM) that would require applicants for federal employment to disclose their participation in diversion programs. These programs involve the completion of court or judge specified requirements in exchange for the dismissal of criminal charges.

Read the full comment here.

Diversion programs vary across the country, but typically involve completing community service hours, undergoing rehabilitative programs, or other similar requirements. Diversion is typically available to those accused of non-violent crimes who have no criminal record. Courts often use diversion programs so that the individual does not bear the lifelong collateral consequences of a conviction on their record, such as un- or underemployment.

The clean slate provided by diversion programs helps those who complete these programs find jobs. Multiple studies have shown that employment lowers recidivism rates. By requiring applicants for federal employment to disclosure participation in these programs, OPM’s proposed rule change directly undermines the purpose of diversion.

In its proposed revision, OPM does not identify a problem this potential rule change will address or provide evidence that participation in a diversion program relates to suitability for employment in any way. “The proposed requirement is not supported by analysis or data; yet its consequences are real and potentially widespread,” we state in our comment. The rule change would likely discourage or exclude qualified applicants from federal employment.

And the proposed rule change will disproportionately impact African Americans, who face discrimination at each stage of the criminal justice system I addition to well-documented disparities in policing and criminal charges. Compounding this effect, the federal government is a large employer of African Americans, with 18.15% of the federal workforce identifying as Black, according to OPM.

Overall, diversion remains a critical tool that state criminal systems use to constructively resolve minor offenses. The OPM’s proposed rule change is unnecessary and runs counter to these goals.