Colorado Laws on Employer Use of Arrest and Conviction Records

If you are among the tens of millions of Americans with a criminal conviction on your record, you might face an uphill battle in your job search. Surveys show that a majority of employers – an incredible 92%, according to one survey – do criminal background checks when hiring for some or all positions. If a prospective employer finds out that you have an arrest or conviction record, you might find landing a job difficult.

Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. Colorado law protects applicants from certain questions about their criminal records.

Colorado's Ban-the-Box Law

Colorado's "ban-the-box" law, known as the Chance to Compete Act, prohibits employers from inquiring about an individual's criminal history on an initial job application (C.R.S. § 8-2-130 (2023)). The law also bars employers from advertising that they won't hire applicants with criminal records.

Employers must wait until later in the hiring process, typically after the first interview or a conditional job offer has been made, before asking about an applicant's criminal record. However, employers are permitted to run criminal background checks at any point in the hiring process.

Other State Limits on Use of Criminal Records in Employment

Colorado law also prohibits employers from asking about criminal records that have been sealed or expunged. Employers may not ask employees about these records in interviews or job applications.

An applicant may answer any questions about these records as if they had not occurred. For example, if an application asks whether the applicant has ever been convicted, and the applicant's conviction has been expunged, then the applicant is legally entitled to answer "no."

Colorado law also prohibits employers from asking applicants or employees about arrests for civil or military disobedience, unless an arrest led to a guilty plea or conviction.

Federal Protections for Applicants With a Criminal Record

There are two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of inaccuracies in these records.

Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else entirely.

Employer Obligations Under the FCRA

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:

• Get the applicants written consent ahead of time.
• Notify the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
• Inform the applicant after the employer makes a final decision not to hire him or her based on the information in the report.

Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

• the nature and gravity of the criminal offense or conduct
• how much time has passed since the offense or sentence, and
• the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

How Far Back Do Criminal Background Checks Go in Colorado?

With a few exceptions, criminal background checks in Colorado generally go back seven years. The exceptions include:

• if you're applying for a job with an annual salary of $75,000 or more, or
• if you're applying for a job in the field of education or medicine.

What Shows Up on a Criminal Background Check in Colorado?

If you have a criminal record in Colorado and an employer runs a criminal background check on you, the following information will appear:

• type of offense
• date of offense
• whether offense was a misdemeanor or felony
• disposition of offense
• disposition date, and
• sentencing information.

Do Out-of-State Offenses Appear on a Criminal Background Check in Colorado?

Sometimes. The answer depends on whether the employer conducts a comprehensive background check, and whether the background check provider searches a multi-jurisdictional database.

Not all states provide their criminal records to national databases, which means a criminal conviction in another state might slip through the cracks. In addition, some employers choose to limit their background checks to Colorado-specific records.