Colorado ban-the-box law: the Chance to Compete Act for recruiters

Colorado's ban-the-box law, the Colorado Chance to Compete Act at C.R.S. 8-2-130, is narrower than most. Since September 1, 2021 it has applied to all private employers, including their agents and employment agencies, and it does three things: no ads saying people with a criminal history may not apply, no such statement on application forms, and no criminal history questions on the initial written or electronic application. It does not, in the text we reviewed, restrict questions later in the process, and it expressly lets employers obtain a publicly available criminal background report at any time.

The statute

House Bill 19-1025, signed May 28, 2019, added section 8-2-130, short title the "Colorado Chance to Compete Act." Subsection (3)(a) says that on and after September 1, 2019 an employer with eleven or more employees, "and on and after September 1, 2021, all employers," shall not:

1. state in an advertisement for a position that a person with a criminal history may not apply;
2. state on any form of application, including electronic applications, that a person with a criminal history may not apply; or
3. "inquire into, or require disclosure of, an applicant's criminal history on an initial written or electronic application form."

Subsection (3)(b) adds: "an employer may obtain the publicly available criminal background report of an applicant at any time." "Criminal history" means "the record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level."

Who is covered

• All private employers. An employer is "a person that regularly engages the services of individuals to perform services of any nature." The 11-employee threshold ended on September 1, 2021.
• Agents and agencies. The definition includes "an agent, representative, or designee of an employer" and "an employment agency, as defined in section 24-34-401(4)."
• Not government. The state, local governments and quasi-governmental entities are excluded from this section.

Exceptions

The section does not apply to a position if:

• federal, state or local law or regulation prohibits employing a person with a specific criminal history in that position;
• the employer designates the position to participate in a government program to encourage employment of people with criminal histories; or
• the employer is required by federal, state or local law or regulation to run a criminal history record check for the position, whether it is filled by an employee or an independent contractor.

What is allowed at each stage

The gap between "not on the application" and "anywhere else" is where recruiters get into trouble with multi-state hiring. A screen that asks a Colorado candidate about convictions may not breach 8-2-130, but the same question to a candidate whose job is in California or Washington would breach those states' laws, and in any state it creates notes and impressions that can make a later rejection look like it turned on the record. Most teams keep the question out of screens everywhere.

What Colorado does not require

Section 8-2-130 does not require an individualized assessment, a preliminary notice or a response period, and it says it "does not create a protected class" under Colorado's anti-discrimination statute. That does not make any decision lawful. The EEOC's guidance on arrest and conviction records under Title VII still applies to how a record is used, and the federal FCRA governs reports from screening companies. Colorado also has separate laws on sealed records and on licensing decisions that we did not review for this page.

Staffing agencies and recruiters

Because the definition includes an employer's agent and any employment agency, an agency's application form, candidate portal or job board posting is covered in its own right. If you post a client's role, the ad is yours as much as the client's: remove any "clean record" or "no felonies" line before it goes live, unless the client documents an exception.

Penalties and enforcement

The Colorado Department of Labor and Employment enforces the section. A person aggrieved may file a complaint, and the Department must investigate a complaint received within twelve months of the violation unless it finds the complaint without merit. Under subsection (5)(c) an employer is liable for:

• first violation: a warning and an order requiring compliance within 30 days;
• second violation: a compliance order and a civil penalty of up to $1,000;
• third or subsequent violation: a compliance order and a civil penalty of up to $2,500.

Under subsection (5)(d), the second and later penalties apply only if the employer failed to comply with an order within 30 days, or complied and then violated the section again more than 30 days after the order. The section creates no private cause of action, and the penalties are the sole remedy.

How it fits with FCRA adverse action

Colorado's permission to obtain a publicly available report "at any time" does not switch off the FCRA. If a consumer reporting agency prepares the report, the employer needs a stand-alone disclosure and written authorization before ordering it, and must send a pre-adverse action notice with a copy of the report and the summary of rights before rejecting anyone because of it, followed by a final adverse action notice. The steps are in our FCRA background check guide, with wording in background check notification emails.

Questions to settle with a Colorado client at intake

• Does a law prohibit employing someone with a specific criminal history in this position, or require a record check? Which one?
• Is the position designated for a government program that encourages hiring people with criminal histories?
• Do the client's application forms, including electronic ones, ask about criminal history on the initial application?
• Who orders any background report, and who handles the FCRA disclosure and adverse action notices?

A script for Colorado screens

Candidate volunteers a record: "Thanks for telling me. I don't screen on criminal history, so I won't note it. If the employer runs a background check, it's a separate step and you'd see anything they rely on."

Client wants a "no felonies" line in the ad: "Colorado doesn't allow ads that say people with a criminal history can't apply, unless a law disqualifies people for this job or requires a check. Is there a specific law? If so, send it to me and I'll note it on the requisition."

Hiring manager asks you to ask on the screen: "Colorado only restricts the application form, but our practice is to keep it out of screens so we're consistent across states. It belongs in the background check stage."

A Colorado checklist for recruiting desks

1. Remove criminal history questions and "may not apply" statements from initial applications, electronic forms and candidate portals.
2. Review ad templates and job board copy for "no felons," "clean record" and similar lines.
3. Record any claimed exception with the specific law or program that supports it.
4. Keep criminal history out of screens and notes as a consistent practice. See what not to write in interview notes.
5. Route any background check through the FCRA disclosure, authorization and adverse action steps.
6. For the federal picture and scripts used in stricter states, see ban-the-box laws and interview questions.