Colorado Is 13th State to Ban the Box for Private Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
June 4, 2019
Colorado will become the 13th state with a "ban the box" criminal history law affecting private employers during the hiring process. Effective September 1, 2019, the new law will apply to employers with 11 or more employees and effective September 1, 2021, it will apply to all employers.
The Colorado "ban the box" measure prohibits employers from:
- Asking about an employer's criminal history on an initial job application;
- Advertising that a person with a criminal history may not apply for a position; and
- Placing a statement in a job application that a person with a criminal history may not apply.
Unlike several "ban the box" laws elsewhere, there are no restrictions on an employer wishing to conduct a background check beyond those required by the Fair Credit Reporting Act. Colorado also provides limited exemptions when the law prohibits employing a person with a particular criminal history in certain jobs or when the law requires a criminal background check for the position.
In addition to the many states with "ban the box" measures, several big cities have broad "ban the box" laws that prohibit any criminal history inquiries until after a conditional job offer has been made, including:
- Baltimore;
- Los Angeles;
- New York City;
- Philadelphia;
- San Francisco; and
- Washington, DC.
The idea behind "ban the box" laws is to give qualified, rehabilitated applicants a legitimate chance to be considered for job openings. Some large employers, including Home Depot, Target and Koch Industries, have eliminated criminal history questions from their job applications.
The week before Colorado Gov. Jared Polis signed his state's "ban the box" law into effect, Maryland Gov. Larry Hogan vetoed a measure that would have prevented covered employers from asking about an applicant's criminal history until after an initial job interview.
In his veto letter, Gov. Hogan said the bill would impose additional costs on employers without returns in terms of opportunities for ex-offenders. He also expressed concern that it contained "dangerous preemption language" that would have explicitly allowed more restrictive laws in Maryland counties and cities, leading to a patchwork of different laws across the state.