December 7, 2021

Volume XI, Number 341


December 06, 2021

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Colorado Becomes 13th State to Pass “Ban the Box” Legislation

On May 28, 2019, Colorado governor Jared Polis signed into law the Colorado Chance to Compete Act (House Bill 19-1025), more commonly known as “ban the box” legislation. The recently signed Act is another example of pro-employee legislative change that has taken place since the Democrats gained control of the state legislature in 2018.

Colorado will now join California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, which have all passed similar ban the box laws pertaining to private employers.

Effective Date

The new law will go into effect in September 2019 for employers with 11 or more employees. The law will not apply to businesses with fewer than 11 employees until September 2021. While the Act applies only to the private sector, Colorado passed a similar law pertaining to the public sector back in 2012.

Key Components

The new law has three key components for covered private employers. First, an employer may not state in an advertisement for employment that a person with a criminal history is prohibited from applying. Second, employment applications (including electronic applications) cannot state that a person with a criminal history may not apply for a position. Finally, employers cannot inquire into or require disclosure of an applicant’s criminal history on an initial employment application (either in hard copy or electronic format). “Criminal history” is defined in the Act as “the record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level.”

Notably, the law does not prohibit employers from obtaining the publicly available criminal history of an applicant at any time. Furthermore, the Act maintains exceptions where the law prohibits a person from holding a position if they have a certain criminal background or if an employer is required by law to conduct a criminal history record check for a particular position.

The act also provides that the Colorado Department of Labor and Employment (CDLE) will adopt rules regarding the handling of complaints filed against employers, including rules regarding requirements for providing notice to an employer of an alleged violation and recordkeeping requirements during an investigation.

Enforcement and Penalties

The Act does not create a private right of action or a new protected class. However, a person that claims to be aggrieved by a violation of the Act is permitted to file a complaint with the CDLE within one year after the alleged violation. The CDLE will then investigate the complaint unless it is determined that the complaint is without merit.

An employer that violates the provisions of the Act may be liable for the following penalties:

  1. For the first violation, a warning and an order requiring compliance within 30 days
  2. For the second violation, an order requiring compliance within 30 days and a civil penalty not to exceed $1,000
  3. For a third or subsequent violation, an order requiring compliance within 30 days and a civil penalty not to exceed $2,500

What Now?

Colorado employers may want to review their job postings and advertisements, as well as employment applications and application processes, including interview guides and sample questions, to ensure compliance with the new legislation’s requirements. Employers may also want to train key employees who are involved in the hiring process on the new prohibitions.

Employers with 11 or more employees in the state of Colorado may need to take prompt action to review and, if necessary, revise their application forms, job advertisements, and interview processes to comply with the new legal requirements in advance of the September 2019 implementation date.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 186

About this Author

Austin Smith, Ogletree Deakins Law Firm, Employment Law Attorney
Office Managing Shareholder

Austin Smith is the Managing Shareholder of Ogletree Deakins’ Denver office, and he has devoted his career to advising and counseling employers on issues affecting their relationship with their employees. From questions about compliance with state and federal wage and hour laws and regulations to drafting effective policies to prevent discrimination, harassment, and violence in the workplace, as well as assisting employers in navigating complex drug testing-related concerns, Austin has extensive experience assisting employers to prevent potential liabilities down the...

Chelsea Hutchinson employment lawyer Ogletree Deakins

helsea Hutchison counsels and represents employers in a broad range of labor and employment matters arising under federal and state

Chelsea graduated from the University of Alabama School of Law. During law school, she served as Managing Editor for The Journal of the Legal Profession, participated in the University’s year-long mediation clinical program, and was a member of the Bench and Bar Legal Honor Society. Chelsea interned with Ogletree’s Denver office both summers during law school and worked for an in-house attorney of a Birmingham-...

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Jennifer Woodruff, Background Check Attorney, Ogletree Deakins Law Firm
Of Counsel

As a member of the firm’s Background Check Advice team, Jennifer offers practical, real-world advice on analyzing, drafting, and implementing valid background check authorization and disclosure forms, pre-adverse and adverse action letters, background check processes and procedures, and other background-check-related documents and communications.

Leveraging her experience for one of the country's largest background check companies, Jennifer provides client consultation on employer background check processes, including best practices related to the federal Fair Credit Reporting Act,...