Written by Bradley Arant Boult Cummings LLP
Can you ask a job applicant criminal history? As with so many legal questions, the answer is “it depends” — on where you work, in this case. A recently enacted law will change this answer for Colorado employers beginning as early as September 1, 2019. In just a few months, both public and private employers will be prohibited from asking prospective workers about their criminal history on job applications. This is a growing movement – commonly referred to as “Ban the Box” – across the country with 35 other states having similar laws on the books. Of those 35 states, 12 states apply the Ban the Box laws to private employers (we previously wrote about Tennessee’s Ban the Box law.) Colorado has become the 13th state to do so.
The Colorado law specifically forbids public and private employers from:
- Advertising that a person with a criminal history may not apply for a position;
- Placing a statement in an employment application that a person with a criminal history may not apply for a position; and
- Inquiring about an applicant’s criminal history on an initial job application.
These restrictions do not apply when:
- The law prohibits an individual with a certain criminal history from holding a particular job;
- The employer is participating in a program to encourage employment of people with criminal histories; or
- The employer is legally required to conduct a criminal history record check for the specific job.
The law takes effect on September 1, 2019, for employers with 11 or more employees, and on September 1, 2021, for employers with fewer than 11 employees. The Colorado Department of Labor and Employment (CDLE) will enforce the law and can issue warnings and orders of compliance for violations. If violations continue after warnings or orders, the CDLE may impose civil penalties. There is no private cause of action under the law, so job applicants cannot bring their own lawsuits.
Of importance, the law does not take away an employer’s ability to uncover whether a job applicant has a criminal history. Employers are still allowed to run background checks on prospective workers at any time and can still ask about the applicant’s criminal history during the interview. The law instead focuses on giving a job applicant the opportunity to sit face to face with a prospective employer and explain the applicant’s criminal history in person. With the law’s effective date quickly approaching, employers who operate in Colorado should check their job postings and applications to ensure they do not run afoul of this new law. Employers not in Colorado should check their own state’s law.