Third Time a Charm for ‘Ban the Box’ in Colorado

House committee advances bill limiting criminal history inquiries on first job applications

Rep. Leslie Herod’s voice rose as she closed out her plea to the House Judiciary Committee to vote to advance the “Colorado Chance to Compete Act.” Following a few hours of testimony, the committee was set to decide whether to advance House Bill 1025, Colorado’s latest attempt to bar employers from asking about criminal history on initial applications. Such laws are known as “ban the box” statutes.

“What we’re doing is rooting for people to be able to come back to society, be productive, get that job, in some cases stay sober, in most cases not re-offend,” Herod said, her passion evident in her voice. “So this isn’t just a bleeding-heart liberal bill or some hashtag. This is real people’s lives.”

The committee advanced House Bill 1025 on an 8-3 vote Jan. 29. It turned out the third time was a charm for the piece of legislation, having failed in Colorado’s Capitol twice before. The last effort was struck down by the Republican-controlled Senate in 2017. A handful of other states such as Massachusetts, Hawaii, Minnesota and California have passed similar legislations.

Rep. Jovan Melton sponsored House Bill 1025 alongside Herod. While the bill prevents employers from asking about applicants’ criminal records on initial applications, it doesn’t affect their ability to do background checks anytime during the hiring process. The bill also prevents employers from advertising or stating on an application that people with criminal records can’t apply. It contains several exceptions, such as for particular positions that require background checks or bar people with certain criminal histories from holding the position.

Supporters of “ban the box” laws tout their effectiveness in reducing recidivism because of the links between employment and a reduced chance of re-offending. Former offenders are more likely to be called back about a job when they don’t have the stigma of a criminal record attached to them from the moment they apply. 

Herod pointed to a study showing how application questions about criminal history disproportionately impact people of color. White applicants with no criminal history were called back 34 percent of the time, compared to 17 percent who did have records. By contrast, black applicants with no criminal history received a call back in 14 percent of instances, compared to 5 percent of black applicants who had criminal histories.

She said Colorado’s criminal records database has more than 1.8 million people, which includes those who have not been convicted and records of some traffic offenses. 

Most of the dissent against the bill came from a few committee members, rather than stakeholder testimony. Their concerns addressed some of House Bill 1025’s practical impacts on employers. 

Rep. Terri Carver had lingering reservations about how broadly the bill defines “employer” and ultimately voted against it. It defines the term as “a person that regularly engages the services of individuals to perform services of any nature.”

Carver said she doesn’t think those who hire people but don’t fit the traditional understanding of an employer, such as churches or individual people who hire caregivers, may not understand it subjects them to labor law. Carver pointed to one of her neighbors, who has multiple sclerosis and uses a caregiver, as an example.

“I can assure you my next-door neighbor, when she is looking at making that decision, doesn’t contemplate that she has entered into Colorado labor law on how she hires somebody to come in and do live-in care.”

Rep. Hugh McKean voted against the bill because of employers’ practical interests in differentiating job applicants from each other, and he said he doesn’t think a detailed conversation about an applicant’s criminal record is likely to happen if employers’ ability to ask about it is limited. But testimony from people with criminal histories during the meeting about the challenges they have run into finding employment seemed to indicate the opposite: Revealing their criminal record before they have had any face time with an employer turns them into a “faceless felon” the employer is immediately wary of.

“What we’re hearing is absent a change in law, they do not get that conversation,” said Rep. Kerry Tipper.

One amendment to the bill addresses the sole testimony against it. It would create an exemption for third-party workers that contract with nursing and assisted living homes who aren’t directly employed by the facilities they work at, but are still required by law to pass a background check for their jobs. Doug Farmer, president of the Colorado Health Care Association and Center for Assisted Living, said earlier during the meeting the group would withdraw its opposition to the bill if such an amendment were put in.

Several business stakeholder groups testified with a neutral position on House Bill 1025. They said they opposed previous versions of Colorado’s “ban the box” law, but decided to take a neutral position after seeing how much legislators had worked to listen to stakeholders and come up with a bill that gets as many groups as possible to find common ground. Rep. Adrienne Benavidez echoed the sentiment just before voting.

“The sponsors should be applauded for getting all of these diverse groups on the same page and to move forward with this policy,” she said. “And we would be remiss in not supporting this bill.” 

— Julia Cardi

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