On May 28, 2019, Colorado governor Jared Polis signed into law the Colorado Chance to Compete Act (House Bill 19-1025), more commonly known as “ban the box” legislation. The recently signed Act is another example of pro-employee legislative change that has taken place since the Democrats gained control of the state legislature in 2018.
Colorado will now join California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, which have all passed similar ban the box laws pertaining to private employers.
The new law will go into effect in September 2019 for employers with 11 or more employees. The law will not apply to businesses with fewer than 11 employees until September 2021. While the Act applies only to the private sector, Colorado passed a similar law pertaining to the public sector back in 2012.
The new law has three key components for covered private employers. First, an employer may not state in an advertisement for employment that a person with a criminal history is prohibited from applying. Second, employment applications (including electronic applications) cannot state that a person with a criminal history may not apply for a position. Finally, employers cannot inquire into or require disclosure of an applicant’s criminal history on an initial employment application (either in hard copy or electronic format). “Criminal history” is defined in the Act as “the record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level.”
Notably, the law does not prohibit employers from obtaining the publicly available criminal history of an applicant at any time. Furthermore, the Act maintains exceptions where the law prohibits a person from holding a position if they have a certain criminal background or if an employer is required by law to conduct a criminal history record check for a particular position.
The act also provides that the Colorado Department of Labor and Employment (CDLE) will adopt rules regarding the handling of complaints filed against employers, including rules regarding requirements for providing notice to an employer of an alleged violation and recordkeeping requirements during an investigation.
Enforcement and Penalties
The Act does not create a private right of action or a new protected class. However, a person that claims to be aggrieved by a violation of the Act is permitted to file a complaint with the CDLE within one year after the alleged violation. The CDLE will then investigate the complaint unless it is determined that the complaint is without merit.
An employer that violates the provisions of the Act may be liable for the following penalties:
- For the first violation, a warning and an order requiring compliance within 30 days
- For the second violation, an order requiring compliance within 30 days and a civil penalty not to exceed $1,000
- For a third or subsequent violation, an order requiring compliance within 30 days and a civil penalty not to exceed $2,500
Colorado employers may want to review their job postings and advertisements, as well as employment applications and application processes, including interview guides and sample questions, to ensure compliance with the new legislation’s requirements. Employers may also want to train key employees who are involved in the hiring process on the new prohibitions.
Employers with 11 or more employees in the state of Colorado may need to take prompt action to review and, if necessary, revise their application forms, job advertisements, and interview processes to comply with the new legal requirements in advance of the September 2019 implementation date.