Colorado’s “ban the box” law takes effect Sept. 1

Starting September 1, 2019, Colorado employers with 11 or more employees will not be allowed to ask job applicants about their criminal history during the initial job application under a law approved earlier this year by Centennial State lawmakers.

The move means Colorado has joined the rapidly growing number of states and local jurisdictions to sign onto the “ban the box” movement, which is aimed at providing those with criminal records a better chance at competing in the job market by eliminating the checkbox on employment applications that asks about criminal history.

The “Colorado Chance to Compete Act” was signed by Governor Jared S. Polis on May 29.

While the bill places limitations on when a private employer may ask about prior criminal history, it does not prevent employers from conducting background checks and expressly allows an employer to obtain an applicant’s publicly available criminal background report at any time.

State agencies in Colorado have been barred from performing background checks until the agency determines that an applicant is a finalist or makes a conditional offer of employment to the applicant since 2012.

A better chance to compete for a job

In putting the restriction in place, the legislature said it wants to provide Coloradans with criminal backgrounds a better chance to compete for jobs. The Colorado General Assembly noted in the bill that more than 1.5 million Coloradans are included in the state’s criminal history record database and that “previous involvement with the criminal justice system often creates a significant barrier to employment” when that information is included on an initial job application.

The legislators also made a business case for removing barriers to employment for people with criminal history, observing that in 2014 unemployment of people with criminal histories cost the United States economy between $78 and $87 billion dollars in annual gross domestic product.

The lawmakers also observed in the bill that employing people with criminal histories makes communities safer because “when people with criminal histories are gainfully employed, they are significantly less likely to reoffend.”

Bill details

Private employers with 11 or more employers cannot ask about criminal history on the initial job application starting September 1, all other private employers must remove the inquiry starting September 1, 2021.

Employers cannot state in job ads or applications, including electronic applications, that a person with a criminal history may not apply for the position or require disclosure of an applicant’s criminal history on an initial written or electronic application form. However, an employer can obtain the publicly available criminal background report of an applicant at any time.

There are exceptions:

• The law does not apply to a position being advertised if federal, state, or local law prohibits applying for the position if a person has a specific criminal history
• The law does not apply if 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
• The employer is required by federal, state or local law or regulation to conduct a criminal history record check for that position, regardless of whether the position is for an employee or an independent contractor

Complaints must be filed with the Colorado Department of Labor (DOL) within 1 year of an alleged violation of the act. The state labor department will investigate the complaint. If the DOL finds a violation, the employer will be liable for the following penalties:

• First violation – a warning and an order requiring compliance within 30 days
• Second violation – an order requiring compliance within 30 days and a civil penalty not to exceed $1,000
• Third or subsequent violation – an order requiring compliance within 30 days and a civil penalty not to exceed $2,500

The new legislation does not create a private cause of action. It also does not create a protected class.

“Ban the box” trend

Some say “ban the box” laws are becoming the rule and not the exception. There is a trend at the state and local levels to protect prospective employees who have been convicted of a crime from automatic exclusion in the workplace, especially at the beginning of the job application process. Currently, 35 states and over 150 cities and counties have enacted “ban the box” legislation.

New Mexico is one of the latest states to join the movement. Gov. Michelle Lujan Grisham signed the bipartisan “Criminal Offender Employment Act” on April 3, 2019. The law prohibits private employers in the state from asking job applicants about their arrest or conviction history on the job application.

Employers may still ask about a job applicant’s criminal record during interviews. The legislation does not prevent employers from making a contingent offer and does not restrict employers from conducting background checks on applicants. The private sector measure went into effect on June 14, 2019. Government employers in New Mexico have been forbidden from asking about prior criminal history on job applications since 2010.

Many have argued that employment can help to prevent “recidivism”—the tendency of ex-offenders to reoffend. However, the campaign has been criticized by industry groups such as the National Retail Federation and the New Jersey Chamber of Commerce and the National Federation for Independent Business (NFIB).

In a 2017 blog post, the advocacy organization for small businesses said “ban the box” laws place employers in a bind – a business may face a potential lawsuit if it rescinds an offer because of an applicant’s criminal record while it can face potential legal liability in hiring an employee with a record.

Bucking the trend, Maryland’s governor nixed “ban the box” legislation earlier this year. Republican Governor Larry Hogan vetoed a bill on May 29 that would have forbidden Maryland’s private employers from asking prospective employees about their criminal history on employment applications.

The measure, “Criminal Record Screen Practices (Ban the Box)” passed both legislative bodies in the Maryland General Assembly with wide margins. It would have applied to private employers with 15 or more employees.

“Hiring the right team is one of the most critical activities a business does. Employers have the right, and  often the need, to know the criminal history of applicants they may hire,” Hogan wrote in a veto letter. “Senate Bill 839/House Bill 994 prohibits businesses from requiring an applicant to disclose this important information until the first in-person interview. This would result in costly and time-consuming human resources work that ultimately goes nowhere.”

By forbidding an employer from requiring their criminal history until the first in-person interview, the governor wrote, the bill would force businesses to pay for background checks or refer to “incomplete, inaccurate, or outdated online criminal history websites,” adding “tremendous costs” to businesses but yielding no positive impact on job opportunities for those with a criminal history, he wrote.

Hogan also said that the bill “contains dangerous preemption language” that allows for more restrictive laws in each of Maryland’s counties and municipalities, resulting in a “patchwork of different laws” across the state where businesses operating in Maryland would have to “attempt to navigate the intricacies of each set of rules.”

The bill’s sponsors have vowed to fight the governor’s veto and have said they will introduce the bill again in the next session of the Maryland General Assembly which meets in January 2020.

Federal action on “Ban the Box”

There is no federal law forbidding employers from asking about prior criminal history. Maryland Democratic representative Elijah E. Cummings reintroduced a bill earlier this year, the Fair Chance Act, that would prohibit federal agencies and federal contractors from requesting that a job applicant disclose criminal history information before the applicant has received a conditional offer of employment. The last action on the bill occurred on March 26, when the committees assigned to the bill sent it to the House and Senate for consideration.

However, the federal agency charged with enforcing federal laws dealing with workplace discrimination, the U.S. Equal Employment Opportunity Commission, has issued guidelines on hiring those with a criminal history in which it warns that use of an individual’s criminal history can, in some instances, violate Title VII of the Civil Rights Act of 1964’s prohibition against employment discrimination.