The date is rapidly approaching when Colorado will join the growing list of states choosing to “ban the box” on criminal history inquiries by employers. On September 1, 2019, the ban-the-box law will officially go into effect in Colorado for employers with 11 or more employees (it will be applicable to all employers by September 1, 2021). The stated intent of the law is to remove job barriers for people with criminal histories to help the economy grow, to make Colorado communities safer, to provide people with criminal records a more meaningful chance to compete for a job in Colorado, and to protect an employer’s ability to make whatever hiring decision the employer deems appropriate.
The highlights of the new law are as follows:
- Colorado employers may not advertise or state in employment applications that persons with criminal records may not apply for a position.
- Colorado employers may not inquire about or require disclosure of a job applicant’s criminal history in initial job applications.
- Colorado employers are exempt from the restrictions on advertising and initial employment applications when: (1) the law prohibits employing persons with a specific criminal history, (2) the law requires the employer to conduct a criminal history record check for a particular position, or (3) the employer is participating in a program to encourage employment of people with criminal histories.
- Colorado employers are not prohibited from obtaining publicly available criminal background histories on applicants at any time. (Note, however, that relying on such histories to preclude certain individuals from employment comes with its own attendant risks under applicable anti-discrimination and other workplace protection laws and regulations, and you should thus confer with legal counsel before making any such decisions in the workplace.)
- The law does not provide a private right of action or, in other words, an ability for the applicant to sue an employer directly. Rather, the Colorado Department of Labor is tasked with investigating reported violations and issuing monetary penalties to proven violators based on complaints raised within one year of the alleged violation.
As the implementation deadline is just around the corner, Colorado employers should quickly review and re-evaluate their employment policies and practices to ensure compliance with the new law. Your SPB attorneys are available to discuss this law and its potential impacts on your business.