Ban the Box: Requesting Criminal History

This piece of legislation came about in an effort to prevent persons with criminal records from being automatically ruled out for job vacancies, Colorado Governor Jared Polis has signed “ban the box” a.k.a. Chance To Compete legislation. The new law asserts that its intent is to provide those with criminal backgrounds a better chance to compete for a job in the workforce and grow Colorado’s economy. It is also intended to promote safer communities and allow employers to have access to an applicant’s complete criminal history. This new law went into affect on September 1st, 2019 with employers with at least eleven employees, and those with less then eleven employees must have had to comply with the new law as of September of 2021. With this new law in place this makes Colorado the 13th state to enact the "ban the box" legislation on private employers. 

Now what exactly is this new law? The Act broadly defines an “employer” as any person that regularly engages the services of individuals to perform services of any nature. This includes an employer’s agent, representative, or designee, as well as employment agencies. The state, local governments, and quasi-governmental entities or political subdivisions of the state are expressly excluded from the definition of employer. 

House Bill 19-1025, also referred to as the “Colorado Chance to Compete Act,” prohibits:

• Employers from asking about an applicant’s criminal history in an initial job application. (Ban the box legislation regarding public sector employers, specifically state agencies, has existed since 2012, pursuant to bill 12-1263.)
• Employer from stating in an employment position advertisement that a person with a criminal history may not apply
• Requiring the applicant to disclose criminal history on the initial application

Now there are some exceptions of this law which include if there are federal, state, or local law or regulations exists that would prohibit the employer to employ a person with a specific criminal history to that position. As well as if the position is designated by the employer to participate in government programs to encourage the employment of people with criminal histories. And then if the employer is required by deal, state, or local law or regulation to conduct a criminal history check for that position. 

 The new law does not prevent employers from conducting background checks and expressly allows an employer to obtain an applicant’s publicly available criminal background report at any time; however, in that regard, employers still should be mindful of best practices when screening candidates for hire, which typically include not assessing anyone’s criminal history background until post-offer unless required by law. The new legislation does not create or provide an avenue for a private cause of action. It also does not create a protected class.

There is a complaint process that should be followed;  if there is an aggrieved individual they may file a complaint with the Colorado Department of Labor (DOL) within one year of an alleged violation of the Act. DOL will then initiate an investigation of the complaint, unless it determines the complaint is without merit. If the DOL finds a violation, the employer will be liable for the following penalties:

• First violation – a warning and an order requiring compliance within 30 days
• Second violation – an order requiring compliance within 30 days and a civil penalty not to exceed $1,000
• Third or subsequent violation – an order requiring compliance within 30 days and a civil penalty not to exceed $2,500

 The Act provides that the DOL will adopt rules regarding the handling of complaints filed against employers, including requirements for providing notice to an employer of an alleged violation and recordkeeping during an investigation.

Now just a quick overview of what we talked about Colorado employers should begin reviewing their employment applications, and their application processes, including interview guides, sample questions, and job postings and advertisements, to ensure compliance with the legislation’s requirements. Employers also should make sure key employees in the hiring process are trained about the new prohibitions. 

There are many benefits to hiring individuals with a criminal background not only for themselves but also for yourself as an employer. Though it is important to keep a view polices in mind when interacting with employees such as the Equal Employment Opportunity Commission (EEOC) which states that there are federal laws that protect applicants and employees against discrimination based on race, religion, national origin, sex, sexual orientation, disability, genetic information (like medical history or family history), and age that prevents employers from making hiring or personnel decisions based on these factors. The Fair Credit Reporting Act (FCRA) is enforced by the Federal Trade Commission that requires procedures when compiling background information. A benefit for both employer and employee is the Work Opportunity Tax Credit (WOC) which includes: 

• Tax credits are based on the qualified wages paid to the employee during their first year of employment
• 25% of 120-399 worked hours and 40% 400+ worked hours
• $6,000 wages cap, tax credit can be up to $9,600
• WOTC eligibility includes TANF recipients, service-connected disabled veterans, unemployed veterans, food stamp recipients, vocational rehabilitation, SSI recipients, and Rural renewal counties
• Some employees that DO NOT qualify for WOTC are:
  • Relatives or dependents
  • Majority owners of the employer
  • Former employees

Many employers are willing to overlook criminal history and earn incredible loyalty from their employees that are willing work hard for a second chance (we've seen it personally!). In a study done by Northwestern University  "employers saw no difference in firing rates between workers with and without records." On average ex-offenders stayed at their job three weeks longer than employees without records. This reduced turnover could save companies an average of $1,000 per year, per position.

With talent shortages in many industries, these gaps can be filled with those that have training and education already or the opportunities to invest in training for new employees eager to learn a trade, skill, or career. There are plenty of organizations that offer services to assist ex-offenders in reentry. The eColorado Reentry Service (https://e-colorado.coworkforce.com/File.aspx?ID=24271) provides case management help that includes but is not limited to employment, shelter, transportation, and healthcare. Using this organization gives individuals well rounded assistance, that has been seen to go unnoticed. Temp agencies tend to have the ability to connect employers to employees, some temp agencies in Colorado that hire ex-convicts are Adecco Staffing (https://www.adeccousa.com/ ), Aerotek (https://www.aerotek.com/), and All Team Staffing (http://www.allteamstaffing.com/). 

If you have any questions about how to prepare for Colorado's Ban the Box, feel free to reach out to your friends at HR Branches today!

^{Disclaimer: HR Branches provides general information about Human Resources. Please note that the information provided, while reliable, is not legal advice. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make sure your legal interpretation and decisions are correct for your location and circumstances. The purpose of this information is for guidance, ideas, and assistance on general HR matters.}