Colorado has a law similar to the FCRA, prohibiting CRAs from producing consumer reports that contain records of arrest, indictment, or convictions that, from the date of disposition, release, or parole, predate the report by more than seven years when the expected salary of the position is $75,000 or less.
Ban-the-Box 5: Inquiry After Completion of Application
The law (effective 9/1/19 for employers with 11 or more employees; 9/1/21 for all employers) prohibits indicating in advertising or on an application, that a criminal history will disqualify the applicant. The employer is not restricted in reviewing public records. Law applies to Felony and Misdemeanor records. Traffic offences are not restricted except for serious offences such as DUI or DWI.
If the salary is expected to be more than $75,000, the seven-year restriction does not apply. This law, however, was passed after the FCRA amendments were enacted in 1996. Therefore, the Colorado law regarding the timing of contents of the background check report is preempted by the FCRA amendments and does not apply, as explained in Section 625(b)(1)(E) of the FCRA.
In Colorado, employers with four or more employees are prohibited from requesting or using credit history in making employment decisions, unless the applicant consents to the credit report request and certain exemptions are met, including that the employer is a financial institution, the credit history report is required by law, or the credit history report is substantially related to the duties of the job, and is required for legitimate business purposes.
The request for such information must be disclosed to the applicant in writing. Upon review of the report, the employer may ask the applicant to provide additional information on any “unusual or mitigating circumstances” regarding information disclosed in the credit report. If adverse action is contemplated based on the credit history, the applicant must be advised.
Under Colorado law, individuals can submit requests to the courts to have certain records sealed. If a record is sealed, the applicant is no longer required to provide a potential employer with any information related to that specific record.
Employers are prohibited from any form of coercion of either current employees or job applicants regarding obtaining access to their individual social media accounts. They cannot force the disclosure of user names, passwords, or demand to be added to their accounts as a contact.
Furthermore, employers may not take any adverse action against an employee or job applicant for refusing to comply with such illegal requests. Employers are within their rights to conduct compliance investigations if they have any reason to suspect unauthorized downloads of proprietary information.
In May 2012, in the state of Colorado the governor signed HB 12-1263 into law, prohibiting state agencies from performing background checks until after a conditional offer of employment has been made or the applicant has been determined to be a finalist for the position under consideration.
In evaluating the information on the background check report, the EEOC criteria are applied. Further, state agencies cannot disqualify applicants on the basis of expunged, sealed, pardoned, or dismissed offenses without first considering the EEOC criteria.
This law doesn’t apply if there is a statutory bar to licensure based on certain types of convictions, or to public safety-related positions. A state agency may not advertise jobs using language indicating that persons with prior criminal history records are prohibited from applying.
In May 2019, the Colorado governor signed HB 19-1025 into law as a private employment companion law to HB 12-1263. It bans the box on private employer’s job applications, except for positions where hiring people with specific types of convictions is prohibited by law, or where a background check in Colorado is required by law.
This new law will be implemented on a staggered schedule, which began in September 2019 and will be fully enacted by September 2021.
In July 2016, the Denver, CO mayor announced that Denver would ban the box from City and County job applications. Even before this, Denver applied the EEOC criteria when evaluating an individual’s past criminal history check. Employment background checks are only requested after there has been a conditional offer of employment.
Cities Include: Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and more.
Note: This information is not intended to be legal advice. Please consult with your own legal counsel for advice related to your state/locality.