Seyfarth Synopsis: The Colorado Governor has just signed a new law prohibiting employers from inquiring about an applicant’s criminal history on an initial employment application.
On May 28, 2019, Colorado Governor Jared Polis signed the Colorado Chance to Compete Act (House Bill 19-1025), which will prohibit employers from asking about criminal history on an initial written or electronic application. Colorado employers should immediately assess whether they are covered by the new law and, if so, whether they need to update their employment applications and other pre-hire screening policies.
The new law broadly defines employer to mean “a person that regularly engages the services of individuals to perform services of any nature,” which includes any agent, representative, or designee of an employer and employment agencies as that term is defined elsewhere in Colorado law.
It does not apply to the state, any local government, or any quasi-governmental entity or political subdivision of the state. It also will not apply to a position being offered or advertised if:
federal, state, or local law or regulation states that someone with a specific criminal history cannot work in the position sought;
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; or
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.
The new law makes it unlawful for an employer to:
state in any advertisement for the position that a person with a criminal history may not apply for the position;
state on any form of application, whether written or electronic, that a person with a criminal history may not apply for the position; or
inquire into, or require disclosure of, an applicant’s criminal history on an initial written or electronic application form.
“Criminal history” is defined to mean “records of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level.”
Interestingly, the law specifically allows an employer to “obtain the publicly available criminal background report of an applicant at any time.” While many ban-the-box laws either expressly or could be read to prohibit such a practice, Colorado expressly allows it.
The law does not provide an aggrieved individual with a private right of action against a covered employer and it states that it does not create a protected class under the state’s anti-discrimination statute. Rather, an aggrieved individual may file a complaint with the state Department of Labor. Such complaint must be brought within one year of the alleged violation. The Department is required to adopt rules regarding the procedures for handling complaints and any record retention requirements that employers will be required to follow.
If the Department finds a violation, it will issue penalties as follows:
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 violations: an order requiring compliance within 30 days and a civil penalty not to exceed $2,500.
Most immediately, Colorado employers should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks. Although the Chance to Compete Act’s restrictions will eventually apply to all employers regardless of the number of employees, the law states that its restrictions apply to employers with 11 or more employees starting on September 1, 2019, and then to “all employers” as of September 1, 2021. This grace period gives smaller employers additional time to bring their policies and practices into compliance.
Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.