New Colorado law will ban employers from asking applicants about criminal record
Colorado is joining 13 other states in enacting a so-called “ban the box” bill, which Governor Jared Polis signed into law this week. As of September 1, 2019, employers with at least 11 employees will be prohibited from asking job applicants about prior criminal history in job applications, or from stating in a job posting that persons with a criminal history may not apply. The bill, HB19-1025, is called the “Colorado Chance to Compete Act.” As with similar bills in other states, it has the goal of giving persons with a criminal history more opportunity to land a job, as people with criminal records often find themselves screened out for that reason.
What Employers are Covered?
While employers with more than 11 employees must be in compliance by September 1 of this year, employers with fewer than 11 employees must comply by September 1, 2021. The bill applies only to private sector employers; state and local employers as well as other public or quasi-public employers (such as a water district or county government) are not included under this law (some public employers are already covered by a 2012 ban-the-box law).
What Ban-the-Box Prohibits
As noted above, under the new law prohibits covered employers may not:
- Ask for information about an applicant’s prior criminal history on an initial job application, or
- State in a job advertisement or on an employment application that anyone with a prior criminal record may not apply for the job
The statute does not define what an “initial” job application is, nor does it address a job application after the initial one, and whether employers may ask at that time about criminal records. Employers may still obtain publicly available background reports on an applicant, but may not inquire on job applications, whether written or electronic. A “criminal history” includes not just convictions, but any record of arrests, charges, or pleas, either for a felony or misdemeanor at either the local, state, or federal level.
There are some exceptions to these prohibitions:
- If the law prohibits a person who has a particular criminal history from being employed in a particular job
- If the employer is participating in a program to encourage employment of people with criminal histories, or
- If the employer is required by law to conduct a criminal history record check for the particular position
Penalties for violations
The new ban-the-box law does not create a “private right of action”, meaning that someone who believes a potential employer violated the law may not bring a lawsuit against the employer. Instead, that person must file a complaint with the Colorado Department of Labor within one year of the alleged violation. The Department will investigate the complaint, and can impose the following penalties:
- First violation: a warning and an order requiring compliance within 30 days
- Second violation: order requiring compliance within 30 days and a fine up to $1,000
- Third or subsequent violation: order requiring compliance within 30 days and a fine up to $2,500
What employers should do now
Employers with more than 11 employees must be in compliance by September 1, 2019, which is only two months from now. To get into compliance, all employers (even those with fewer than 11 employees) should:
- Review paper and online employment applications and remove any questions asking for criminal history, unless your company fits into one of the exceptions
- Review application processes, including interview guides and questions, job postings, etc. to eliminate prohibited questions, or statements that people with prior criminal records may not apply
- Train employees involved in the hiring process so that they know what is and is not permitted
Making these changes, in particular to any online platforms or paper documents, will take some time and involve some cost, so it is best to start now for those employers who must comply this year. For smaller employers, it cannot hurt to make the necessary changes sooner, rather than wait until the last minute in 2021.
If you have questions, please contact Mark Spitz at Spitz Legal Counsel LLC, 720-575-0440, or mark@spitzlegalcounsel.com.