Denver, Colo. (June 14, 2019) – Colorado Governor Jared Polis signed into law House Bill 19-1025 (the Act), making Colorado the latest state to prohibit certain employers from inquiring into a prospective employee's criminal history on a job application. The number of states passing similar laws has grown to 14, and that number will likely continue to rise.
Starting September 1, 2019, certain employers will no longer be able to ask job applicants to disclose prior criminal history on job applications, but employers are explicitly permitted to perform a publicly available criminal background check at any point in the hiring process.
What Is The Purpose of the Act?
The General Assembly of the State of Colorado determined that an individual's previous involvement with the criminal justice system often has a detrimental impact on employment prospects, which in turn can lead to a greater likelihood of reoffence. The General Assembly further found that families are more likely to depend on public assistance and children are less likely to receive necessary financial support when individuals cannot find work or work at jobs that are below their potential due to criminal histories. According to the Assembly, removing job barriers for individuals with criminal histories can aid in economic growth and make our community safer.
To Whom Does the Act Apply?
The Act applies to employers in the State of Colorado with 11 or more employees starting on September 1, 2019. After September 1, 2021, the Act applies to all employers of any size. The term "employer" includes private employers and their agents, as well as employment agencies, but carves out common exceptions for state and local governments.
What Exactly is Now Prohibited?
Employers are no longer able to (1) state in job advertisements or on application forms that people with criminal histories may not apply, or (2) inquire into, or require disclosure of, an applicant's criminal history on a written or electronic application form.
There are several exceptions to the Act's prohibitions for job advertisements or applications, such as existing rules that may prohibit people with specific criminal histories from working in a particular position. Similarly, if a federal, state, or local law requires a criminal history record check for the position, regardless of whether the application is for employment as an employee or as an independent contractor.
How is the Act Enforced? What are the Penalties?
There is no private cause of action, meaning individuals may not bring suit to enforce this Act. Rather, an individual aggrieved by an employer's violation may file a complaint with Colorado's Department of Labor & Employment.
An employer found to have violated the Act will be ordered to comply within 30 days. A first-time violator will receive a warning; a second violation will result in the imposition of a civil penalty up to $1,000; and third and subsequent violations will expose the employer to a civil penalty up to $2,500 per violation.
As a Business Owner, What Should I Do?
The penalties for noncompliance with this Act can drain important resources from employers and their businesses. The Act becomes effective in only a few months, which does not provide employers much time to become compliant. Now is a good time for employers to review their job applications and hiring practices and make any necessary adjustments.
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