['Recruiting and hiring']
['Negligent Hiring / Retention']
07/16/2024
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Summary of differences between federal and state regulations
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, he/she 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.
Arrest record inquiries
In Colorado, 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.
According to the “Preventing Job Discrimination” guidelines from the Colorado Civil Rights Commission/Division, employers may not ask any questions about arrests. This is more stringent than the EEOC’s guidelines, which allow for exceptions.
Conviction record inquiries
In Colorado, 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 criminal 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.
According to the “Preventing Job Discrimination” guidelines from the Colorado Civil Rights Commission/Division, employers may ask about convictions only if it is related to the ability to perform a job, but the question must be posed to all applicants.
The EEOC’s policy in Notice N-915 says that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964, in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
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
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 8-2-111.5, Certain employment references - exception to blacklisting prohibition
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 8-2-114, Immunity from civil liability for employer disclosing information – employer shall not maintain blacklist – credit lists excepted
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 22-63-202. Employment contracts - contracts to be in writing - duration - damage provision
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 22-63-203. Probationary teachers - renewal and nonrenewal of employment contract
www.lexisnexis.com/hottopics/michie/
Arrest record inquiries
Colorado Revised Statute 8-3-108, What are unfair labor practices
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 24-72-308, Sealing of records
www.lexisnexis.com/hottopics/michie/
Conviction record inquiries
Colorado Revised Statute 8-3-108, What are unfair labor practices
www.lexisnexis.com/hottopics/michie/
Colorado Revised Statute 24-72-308, Sealing of records
www.lexisnexis.com/hottopics/michie/
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 Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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