THINKING OUTSIDE THE BOX: Lawmakers seek to limit employer queries about criminal records

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AURORA | A pair of metro-area Democrats want to make it easier for people with criminal histories to get jobs.

State Reps. Jovan Melton, D-Aurora, and Leslie Herod, D-Denver, introduced a bill earlier this month that would prevent most employers from asking about an applicant’s criminal history during the beginning stages of the hiring process.

“What we are aiming to do is give people an opportunity to at least get their foot in the door when they’re applying for a position,” Melton said.

The proposed measure, HB-1025, would bar employers from stipulating in advertisements or on employment applications that a person with a criminal history cannot apply for a job. It would also prevent employers from asking about a person’s criminal past at the very beginning of the hiring process.

Employers would be able to conduct background checks anytime after an application has been submitted.

The “Colorado Chance to Compete Act,” comes with several exceptions, however, including employers that specifically participate in government programs created to hire people charged with crimes, and positions that are legally bound to be vetted at the beginning of the hiring process.

Melton said the measure was drafted to curb online applications that automatically disqualify people who have faced criminal charges.

“What we’re finding is when you check that box … it’s automatically either discarding your application … or it flags the applicant,” Melton said. “Basically there’s no point in filing out the rest because the employer’s already put them into a different box.”

About a third of American adults have some sort of criminal history, including about 1.5 million Coloradans, according to the bill’s pretext. A 2017 analysis conducted by Poltifact used FBI data to back up that claim — about one in three adults in the U.S. have faced a felony charge. However, definitions of “criminal history” vary as some experts believe it should include all arrests, while others believe it should only encompass convictions. There is no federal data on the number of Americans who have been convicted of a crime, Politifact found.

If passed, the state Department of Labor and Employment would be in charge of enforcing the new rules. Employers found in violation of the potential future law could face fines of up to $2,500.

A similar, but slightly narrower measure introduced in the state house in 2017 estimated there would be 2,500 annual violation inquiries. Analysts estimated the Department of Labor and Employment would investigate about one tenth of those cases. That bill, which only would have applied to employers with more than 14 employees, would have cost the department about $45,000 a year, according to its fiscal analysis.

The 2017 measure died in the state senate, which was then controlled by Republicans, but has since flipped to Democrats. Melton predicts this year’s proposal would cost slightly more than the proposal two years ago, as the current measure widens the scope to include all state employers regardless of size.

While legislative staff have yet to draft the corresponding fiscal note, Melton said he doesn’t believe the 2019 proposal would cost the state more than $100,000 per year.

Labor and justice reform advocates have been widely successful in passing various versions of so-called “ban the box” legislation in the past decade. More than 30 states and more than 100 counties and municipalities have some form of the measures on their books, according to the National Employment Law Project, a New York-based non-profit organization that researches labor policies.

Colorado passed a narrower version of “ban the box” legislation in 2012. While that law only applies to employees seeking jobs with state agencies, this year’s measure would expand the hiring practices to all Colorado employers.

Lawmakers in Colorado have consistently killed similar proposals in recent legislative sessions, including in 2016 and 2017.

But with Democrats now in control of all aspects of state government, Melton said he believes, “we’re on a good path to get it passed out of the house and senate.”

He said he believes Gov. Jared Polis is “supportive of the concept,” but still wants to review the minutiae of the proposal.

Herod said Democrats’ governmental trifecta bodes well for the measure.

“I’m not seeing a lot of opposition to his bill as we move forward,” she said.

Melton became embroiled in a controversy surrounding his own criminal history last year when The Denver Post reported multiple domestic violence-related charges filed against the veteran lawmaker more than a decade ago. Despite multiple calls for his resignation from party leadership, Melton largely shrugged off the charges and handily won re-election in November.

“I haven’t gotten any pushback or any comments on it,” Melton said of the measure. “This is a bill that I ran in 2017 before any of that came to light, and I’m not running this for my own namesake or my own experience … I mainly believe we’re going to get people back to work and out of the system.”

He said the bill wouldn’t apply to his own criminal history as he was never convicted of a crime — he only received deferred judgments.

But, Melton said, he has “believed in second chances long before the stories were reported.”

The measure is scheduled to be heard in the House Judiciary Committee at 1:30 p.m. on Jan. 29. The committee comprises four Republicans and seven Democrats. Democratic Aurora Rep. Mike Weissman is serving as the committee chair this year; Herod is serving as vice-chair.