“Ban the Box” Will Be Signed Into Law in Colorado
The Colorado legislature has passed “Ban the Box” legislation, which prohibits Colorado employers from (1) inquiring into a job applicant’s criminal history on an initial employment application, and (2) advertising or stating that individuals with criminal histories cannot apply for certain positions. FN 1 Assuming Governor Polis signs the Ban the Box Bill into law, as expected, Colorado will join 12 other states and 18 cities and counties that extend their Ban the Box laws to private employers.FN2 The Bill is effective September 1, 2019 for employers with 11 or more employees, and September 1, 2021 for all other employers.
The Ban the Box Bill allows for exceptions where federal, state, or local law or regulation prohibits employing for that position a person with a specific criminal history (such as nurses/elder caregivers, daycare providers, caregivers in residential facilities, school teachers, and nonteaching school employees), positions which the law requires criminal history record checks (same), or when an employer is trying to encourage employment of people with criminal histories.
Importantly, the Ban the Box Bill does not create a private cause of action or a new protected class under existing anti-discrimination laws. However, it does include staged penalties after the first violation. FN3
Colorado’s Ban the Box legislation will impact many Colorado employers’ hiring practices and processes. Employers for which the Ban the Box Bill will apply will want to thoroughly review their (1) employment application and remove inquiries regarding a job applicant’s criminal history, and (2) employment advertising materials to ensure that they do not state that individuals with criminal histories cannot apply for certain positions. Employers with questions as to whether they are exempted are encouraged to contact an employment attorney for guidance.
FN1: House Bill 19-1025. See https://leg.colorado.gov/bills/hb19-1025
FN2: See, e.g., California, Cal. Gov’t Code § 12952; Illinois, 820 ILSC 75/5, et seq.; Kansas City, Missouri , Code of Ordinances § 38-104
FN3: For the first violation, a warning and an order requiring compliance within thirty days; for the second violation, an order requiring compliance within thirty days and a civil penalty not to exceed one thousand dollars; for a third or subsequent violation, an order requiring compliance within thirty days and a civil penalty not to exceed two thousand five hundred dollars. See https://leg.colorado.gov/bills/hb19-1025