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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
Effective Sept. 1, 2021 for all employers, public and private, Colorado's ban the box law limits when employers can inquire into and consider the criminal history of a job applicant. (The law originally applied to all public employers and only private employers with 11 or more employees.)
Colorado employers may not inquire about a job applicant’s criminal history on an initial job application, nor may they state in a job advertisement or application that an individual with a criminal record may be excluded from consideration. However, employers may obtain publicly available background reports at any point in the hiring process. An exemption may be granted if the law prohibits individuals with convictions from obtaining employment in certain positions or industries. HB 19-1025, Colorado Chance to Compete Act
As of May 2012, state and licensing agencies are prohibited from performing a background check until an applicant becomes a finalist for a position or receives a conditional job offer. Before the bill was passed, Colorado state employment applications omitted questions about applicants’ convictions.
Public and private employers may not in an application for employment, interview, or in any other way require an applicant to disclose any information contained in sealed records. Id. at § 24-72-308. Employers may not inquire into prospective employee’s record of civil or military disobedience unless the matter resulted in a plea of guilty or a conviction. Id. at § 8-3-108(m). Colorado Civil Rights Division, Publications, “Preventing Job Discrimination.” This is more stringent than EEOC’s guidelines, which allow for exceptions.
Employers may not ask an applicant to disclose sealed record information and may not deny employment to the applicant solely because of the applicant’s refusal to disclose sealed arrest record information. Employers may not require an applicant to provide information about civil or military disobedience, unless it resulted in a guilty plea or conviction.
Employer immunity from disclosure claims
In Colorado, an employer/former employer may disclose an employee’s/former employee’s job history or job performance to a prospective employer upon request of the prospective employer or employee/former employee, unless the information is false and the employer/former employer knew it to be false or should have known it to be false. An employer may be liable for disclosures that are false and known to be false or should have been known to be false.
If an employer/former employer sends written information to a prospective employer, they must also send a copy to the employee/former employee, upon request. The employer/former employer must use the last-known address of the employee/former employee. The employee/former employee may also obtain a copy by visiting the employer/former employer during normal hours; however, the employee/former employee may be charged a reasonable fee for the copy.
School districts may disclose to other school districts or schools certain information about teachers listed at Section 22-63-202 and -203.
Blacklisting or notifying an employer of a blacklisted employee, in order to prevent that employee from obtaining employment, is a crime. However, certain financial institutions may disclose to prospective employers information about theft and certain other criminal activity involving money, unless that institution is not acting in good faith. A lack of good faith may be shown if the institution discloses false information recklessly or intentionally.
State
Contacts
Employer immunity from disclosure claims
Colorado Department of Labor and Employment
Arrest record inquiries
Colorado Civil Rights Division
Conviction record inquiries
Colorado Civil Rights Division
Regulations
Employer immunity from disclosure claims
Colorado Revised Statute 8-2-110, Unlawful to publish blacklist
Colorado Revised Statute 8-2-111.5, Certain employment references - exception to blacklisting prohibition
Colorado Revised Statute 8-2-114, Immunity from civil liability for employer disclosing information – employer shall not maintain blacklist – credit lists excepted
Colorado Revised Statute 22-63-202. Employment contracts - contracts to be in writing - duration - damage provision
Colorado Revised Statute 22-63-203. Probationary teachers - renewal and nonrenewal of employment contract
Arrest record inquiries
Colorado Revised Statute 8-3-108, What are unfair labor practices
Colorado Revised Statute 24-72-308, Sealing of records
Conviction record inquiries
Colorado Revised Statute 8-3-108, What are unfair labor practices
Colorado Revised Statute 24-72-308, Sealing of records
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.