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Labor & Employment Law Updates

Colorado’s “Ban the Box” Legislation Is Gaining Momentum

The Colorado General Assembly is considering a “ban the box” billFN1 that would prohibit employers from inquiring about applicants’ criminal histories in initial applications, and prohibit advertisements stating those with criminal histories may not apply. The underlying policy for this legislation, which several states have enacted,FN2 is to reduce the number of otherwise qualified individuals from not applying for gainful employment because of criminal issues in their past.FN3

The current version of this bill has been described as “employer-friendly” because (1) it does not prohibit employers from asking about an applicant’s criminal history during the interview process; (2) nothing prevents an employer from running a criminal background check; and (3) the bill creates exemptions where employers are required by law to prohibit persons with particular criminal histories from being employed in certain jobs. Also, aggrieved applicants would not be entitled to a private right of action against a prospective employer; instead, the bill charges Colorado Department of Labor with enforcing the bill’s requirements.

We anticipate Colorado will pass some version of this legislation, and we will provide updates to permit employers adequate time to adjust their hiring processes and documents for compliance.

Footnotes

FN1:   HB 19-1025. See https://leg.colorado.gov/bills/hb19-1025

FN2:   States that have enacted similar “ban the box” laws include California, Cal. Gov’t Code § 12952, and Illinois, 820 ILSC 75/5, et seq. For a list of “ban the box” laws, see https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/xperthr/pages/ban-the-box-laws-by-state-and-municipality-.aspx

FN3:   See Colorado Democrats bring back “ban the box” — and this time it could happen. New bill would let employers ask about criminal history — after job application, Denverpost.com, (Jan. 29, 2019), https://www.denverpost.com/2019/01/29/colorado-bill-ban-criminal-history-questions-job-applications/.