At the end of May, Colorado Governor, Jared Polis, signed HB19-1025 into law and making Colorado the 13th state to implement Ban-the-Box regulations. The legislation is surprisingly “light” on restrictions. It will be codified at CRS §8-2-130.

Laws known as “ban the box” legislation are meant to prevent former criminals from automatically being ruled out as potential employees. “Ban the box” refers to the box on job applications where applicants must reveal if they have been convicted of a felony.

Effective Dates: September 1, 2019 for employers with 11 or more employees. September 1, 2021 for all employers.

Restrictions: 

  1. Cannot advertise that those with a criminal history may not apply.
  2. Cannot state on applications that a person with a criminal history may not apply.
  3. Cannot inquire into a criminal history on an initial application.

Exception on Inquiry:

An employer may review publicly available criminal records at any time. Thus a review of criminal records is not delayed until after an offer of employment. Note that this applies to “publicly available” criminal records. A commercial database may contain expunged and/or sealed records, as those may be in the database at the time of the last update. Therefore, those records would not be accepted, as they are no longer public records, but “fresh” county searches will be okay.

The restrictions are directed to Felonies and Misdemeanors. Thus, the question is: Can an employer review a driving record that has minor Traffic Violations at any time? This seems to be allowed. DUI’s and Driving While Ability Impaired are Misdemeanors.

Employment Exceptions:

  1. Where law or regulation disqualifies employment upon a specific type of conviction.
  2. The employer is part of a program that encourages employment of those with a criminal record.
  3. Where law or regulation requires a criminal record check.

There is no private cause of action to enforce this law. Rather it is enforced by the Department of Labor Employment.

This law provides little in the way of restrictions beyond the initial application. With the right to review public records, an employer is not restricted in making those inquiries at any time. In the real world, employers do not normally seek a background report until a job is offered. This law eliminates a claim based on a “fine line” as to whether an offer had been officially made to allow the inquiry into criminal history.

 

Source: Larry Henry via the State Rules Register and CRAHelpdesk.com.