Colorado “Bans the Box” for Private Employers on September 1, 2019

By Alyssa Levy

Effective September 1, 2019, the Colorado Chance to Compete Act (HB 19-1025) will “Ban the Box.”  “Ban the box” refers to the checkbox on job applications where applicants must reveal if they have been convicted of a felony.  With this Act, applicants cannot be required to disclose on a job application whether they have been convicted of a felony.  For now, this law only affects employers with 11 or more employees, but the law will expand to all employers on September 1, 2021.  Colorado’s previous “Ban the Box” law, applied only to state agencies under HB 12-1263.

The new law prohibits:

  • Advertising that a person with a criminal history may not apply for a position;
  • Placing a statement in an employment application that a person with a criminal history may not apply for a position; or
  • Inquiring about an applicant’s criminal history on an initial application.

The law exempts employers from the restrictions on advertising and initial employment applications when:

  • The law prohibits a person who has a particular criminal history from being employed in a particular job;
  • The employer is participating in a program to encourage the employment of people with criminal histories; or
  • The employer is required by law to conduct a criminal history record check for the particular position.

Notably, the law expressly allows employers to obtain a job applicant’s publicly available criminal background report at any time.  Be aware, though, Colorado also recently passed HB 19-1275, which simplified the process for sealing a criminal record for a felony if no crime is committed within specified time periods (3 to 5 years) depending on the felony classification.

The law states several objectives, including growing the economy, lowering the economy’s unemployment costs, and gainfully employing prior offenders to significantly reduce the likelihood of recommitting an offense. Colorado follows the path of other states that have passed similar laws for private employers, including in California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

What is the penalty for non-compliance as of September 1?  The law does not create a private cause of action for individuals against their employer, nor does it create a protected class for individuals under employment discrimination laws.  Enforcement by the department of labor will, however, include warnings and compliance orders, and penalties for subsequent violations.