Colorado “Ban the Box” Legislation Goes into Effect This September

by Davis and Ceriani PC on August 30, 2019 under Employment Law

On May 28, 2019, Governor Jared Polis signed HB-19-1025—known as “Ban the Box” into law. Like many other states, Colorado’s “ban the box” law prohibits employers from inquiring into the criminal history of job applicant initial job applications for potential employees. Laws like these were coined as “ban the box” laws due to employers often having a question on their applications which asks employees to check a box “yes” or “no” as to whether they have ever been accused of or convicted of a crime. In recent years, more and more states have moved to “ban the box” because research has shown that such questions disparately impact racial minorities, leading to unintentional discrimination in hiring practices.

Generally speaking, Colorado’s “Ban the Box” law will prohibit employers from asking any job applicant whether he or she has any “record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state or local level.” Practically speaking, this means employers should refrain from asking job applicants about any criminal history, regardless of whether there was a conviction. The law further prohibits employers from stating on job postings or advertisements that individuals with criminal history should not apply. The “Ban the Box” law does not prohibit employers from conducting otherwise legally permissible background checks. The law also does not apply to employers who are required by law to conduct a criminal background check for the open position, employers who are prohibited from hiring an individual with a certain criminal record under the law, or employment programs which encourage hiring of individuals with criminal histories.

Colorado’s “Ban the Box” law is set to go into effect as follows:

  • For all employers with 11 or more employees, “ban the box” shall be effective as of September 1, 2019;
  • For all other employers, regardless of the number of employees, the law shall apply as of September 1st, 2021.

Although the law does not create a private right of action for employees, the Colorado Department of Labor and Employment is authorized to assess penalties for failure to comply. Employers should consult an attorney to review applications to ensure compliance with the new “Ban the Box” law.