Colorado Poised to Join States that “Ban the Box”

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By: Mary E. Kapsak

Colorado appears poised to join a number of states that prohibit employers from inquiring into a job applicant’s criminal history on an initial employment application.  On April 30, 2019, the Colorado legislature sent House Bill 19-1025 (the “Bill”) to Governor Polis’ desk.  Assuming Governor Polis signs the Bill, Colorado will join a number of other states and “ban the box.”  If the Bill is signed into law, Colorado employers will be prohibited from:

  • Stating in an employment advertisement that a person with a criminal history may not apply for the position;

  • Stating on any form or application for employment that a person with a criminal history may not apply for the position; and

  • Inquiring into or requiring an applicant to disclose any criminal history on an initial employment application.

Employers may still obtain a publicly available criminal background report on a job applicant at any time. The above-listed prohibitions will not apply if:

  • Federal, state, or local law or regulations prohibit employing a person with a specific criminal history to the position;

  • The position is designated by the employer to participate in a federal, state, or local government program to encourage the employment of people with criminal histories; or

  • The employer is required by federal, state, or local law or regulation to conduct a criminal background check for the position, regardless of whether the position is for an employee or an independent contractor.

Critically, the Bill does not create a private cause of action or a new protected class under existing anti-discrimination laws.  However, the Bill does include staged penalties after the first violation. If signed into law as expected, the Bill’s provisions will become effective September 1, 2019 for employers with 11 or more employees, and September 1, 2021 for all other employers.