HOUSE 3rd Reading Unamended April 27, 2016 HOUSE Amended 2nd Reading April 25, 2016Second Regular Session Seventieth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 16-0203.02 Jery Payne x2157 HOUSE BILL 16-1388 HOUSE SPONSORSHIP McCann, Court, Duran, Foote, Kagan, Lebsock, Lee, Melton, Moreno, Salazar, Tyler SENATE SPONSORSHIP Merrifield and Guzman, House Committees Senate Committees Judiciary Appropriations A BILL FOR AN ACT Concerning the timing of inquiring into a job applicant's criminal history. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill generally prohibits an employer from: Advertising that a person with a criminal history may not apply for a position; Placing a statement in an employment application that a person with a criminal history may not apply for a position; or Making an inquiry about a candidate's arrests or criminal convictions until the candidate has been offered an interview or a conditional offer of employment. An employer is exempt from these restrictions when: The law forbids a person from being employed on account of a criminal conviction or requires an employer to consider a candidate's criminal history for the job; The employer is participating in a program to encourage employment of people with criminal histories; or The job requires a fidelity bond and the criminal history would disqualify the candidate. An employer must keep applications for 9 months. The department of labor and employment will enforce the section with civil penalties. A violation of the restrictions does not create a private cause of action. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add 8-2-129 as follows: 8-2-129. Criminal history - limitations on use in hiring or retention - definitions. (1) Advertisements - applications. An employer shall not: (a) State in an advertisement for an employment position that a person with a criminal history may not apply for the position; or (b) State on any form of application, including electronic applications, for an employment position that a person with a criminal history may not apply for the position. (2) Arrests and convictions. An employer shall not inquire into or require disclosure of a candidate's criminal history on an initial application until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency. (3) Exceptions. This section does not apply to a position being offered or advertised if: (a) Federal, state, or local law prohibits the employment of a person with a specific criminal conviction for the position and the employer advertises about, makes a statement about, or inquires about that specific conviction; (b) Federal, state, or local law requires the consideration of a candidate's criminal convictions for the position; (c) The position is designated by the employer to participate in a federal, state, or local government program to encourage the employment of people with criminal histories; or (d) The position requires a fidelity bond or equivalent bond and a specific criminal conviction would disqualify the applicant from obtaining or being covered by the bond, and the employer advertises about, makes a statement about, or inquires about that specific conviction. (4) Records. An employer shall retain any completed employment application for at least nine months after its submission to the employer. Within three days after the department requests access to an employment application, an employer shall allow the department to inspect the application at a reasonable time and place. (5) Enforcement. (a) This section does not create or authorize a private cause of action by a person aggrieved by a violation of this section. The penalties set forth in this subsection (5) are the sole remedy for a violation of this section. Evidence that a person violated this section is not admissible in any legal proceeding other than a proceeding brought by the department to enforce this section. (b) A person who is aggrieved by a violation of this section may file a complaint with the department. If the department receives a complaint within six months after the act that is alleged to violate this section occurred, the department shall investigate the complaint unless the department determines that the complaint is without merit. (c) An employer who violates this section is liable for one of the following penalties: (I) If the employer has fourteen or fewer employees: (A) For the first violation, a warning and an order requiring compliance within thirty days; (B) For the second violation, a civil penalty not to exceed five hundred dollars; or (C) For a third or subsequent violation, a civil penalty not to exceed one thousand dollars; or (II) If the employer has more than fourteen employees: (A) For the first violation, a warning and an order requiring compliance within thirty days; (B) For the second violation, a civil penalty not to exceed one thousand dollars; or (C) For a third or subsequent violation, a civil penalty not to exceed two thousand five hundred dollars. (6) Definitions. For the purposes of this section: (a) "Criminal history" means the record of arrests, charges, pleas, or convictions for a violation of any federal, state, or local misdemeanor or felony. (b) "Department" means the department of labor and employment. (c) (I) "Employer" means every person, including a public service corporation, manager, or assignee, association of persons, firm, and private corporation who has four or more people regularly engaged in the same business or employment in service under a contract of hire, expressed or implied. (II) "Employer" does not include a state, local governmental, or quasi-governmental entity or political subdivision of the state. SECTION 2. Act subject to petition - effective date - applicability. (1) This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2016, if adjournment sine die is on May 11, 2016); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. (2) This act applies to acts committed on or after July 1, 2017.