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Politics and Government

Colorado employers, colleges could soon be prevented from asking about criminal histories on their applications

So-called “ban-the-box” bills have failed in the legislature in the past. If the General Assembly passes the employment measure this year, Colorado would become the 12th state to have such a policy for private businesses

Lawmakers in the Colorado House of Representatives debated a ban the box bill on Tuesday, Jan. 29, 2019. (Jesse Paul, The Colorado Sun)
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Just weeks ago, Majid Mohammad was released from incarceration after six years behind bars for a robbery he committed at age 17.

The 24-year-old left prison with big plans to pursue a doctorate in astrophysics. But first he wanted a job, so Mohammad went to a department store seeking work while he pursued his studies. A section on the application, though,  asked about his criminal history, and his hopes for employment were suddenly dashed when a manager said he wasn’t hirable.

“There I was thinking I could be a astrophysicist, and I couldn’t even secure a job at Ross,” he told state lawmakers on Tuesday.

Democrats are poised this year to pass House Bill 1025, which would prevent Colorado employers from asking prospective workers about their criminal history on job applications — which typically comes in the form of a box. And they are seeking to go even further with a similar, companion measure for high school students applying for college.

In past years, similar versions of ban-the-box employment legislation have failed along party lines. But in 2019 Democrats control both chambers of the Colorado legislature and the governor’s office, and amid that political atmosphere and with tweaks in the legislation the business community’s sentiments have softened toward the effort.

House Bill 1025 cruised out of its first committee hearing Tuesday by an 8-3 vote, mostly along party lines. State Rep. Matt Soper, a Delta Republican, was the only GOP member on the House Judiciary panel to vote in favor of the legislation.

Colorado already has a ban-the-box law for workers applying for public-sector jobs, making it one of more than 30 states with such a policy, according to the National Employment Law Project. If House Bill 1025 passes, Colorado would become the 12th state to have legislation that also applies to private-sector jobs, according to the group.

Eleven states have ban the box laws for private employers. (Source: The National Employment Law Project. Map by Jesse Paul, The Colorado Sun)

“We want to make sure people get their foot in the door to get a job,” said state Rep. Leslie Herod, a Denver Democrat and prime backer of the legislation. She said the bill could impact some 1 million Coloradans with a criminal record. “The number one factor of reduced recidivism is their employment, so we know this bill is good for the Colorado economy, and it’s good for criminal justice reform.”

Herod said she has been working with the business community to make sure the measure meets their needs.

Employers would also still be able to run a background check on any applicant, just not ask about it on their initial application. However, they couldn’t state in a job posting that any person with a criminal history cannot apply. There are exceptions for jobs where a criminal history would be problematic, such as positions in finance, healthcare or childcare.

On Tuesday, Herod and her co-sponsor, Aurora Democratic Rep. Jovan Melton, added a provision giving businesses with 10 or fewer employees two years to prepare for the changes and another exempting contractors with employers who work in trades or places that mandate a background check, like a nursing home. This year’s version of the bill also would send violations to the state’s Department of Labor instead of to a lawsuit.

With all of the changes made to the legislation this year, and amid the changing political atmosphere, groups that opposed the policy before — like the statewide and Denver chambers of commerce — are now neutral or in support of the bill.

“Over the years, since that time (the bill was first introduced), we continued to oppose it,” said Tony Gagliardi, Colorado state director for the National Federation of Independent Business. “But the sponsors have always been willing to tweak it, make changes, as we go along. Fast forward to today, I am here to state NFIB is satisfied with what’s been done with the bill.”

He said, in particular, that the time given for small businesses to adapt really tipped the scales in terms of his organization’s support.

“We agree with the concept,” said Gagliardi, who represents some 7,000 small businesses in Colorado. “We agree that for the state to impact recidivism it’s necessary to do everything we can to get past offenders into the workforce, back into society.”

The Colorado Capitol in Denver. (Kathryn Scott, The Colorado Sun)

There’s still some hesitancy among Republicans in the Capitol, however.

“I’m always cautious when I think that what we’re trying to do is implement a statute to do what I think we can do through normal conversation,” said Rep. Hugh McKean, a Loveland Republican who voted against the bill in committee Tuesday.

Members of the party also have concerns about the legislation representing a burden on businesses or putting employers in a bad spot that could mean trouble down the line.

“Employers, it seems to me, have a right to know who they’re hiring,” said Sen. Bob Gardner, a Colorado Springs Republican. “I know the proponents say, ‘well, you can check that, but you can’t ask that on the front end.’ Well, there’s costs associated with getting someone that far into the process. So, I have a lot of reservations about it still. I’ve voted against it in the past, I suspect I’ll vote no on the bill this year.”

Democrats are also targeting other places where someone’s criminal history might be asked on an application.

“We have these boxes on a lot of different applications,” Herod said. “And the more that I work on ban the box for job applications, I find it in other places like in higher education, like in housing.”

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That’s why Sen. Robert Rodriguez, a Denver Democrat, is planning to introduce in the coming days a companion measure that would ban a box asking about criminal history on applications for Colorado’s public colleges and universities.

“Why is this the first question that needs to be known to make it so you’re accepted into college? Why is this question relevant at that step? It’s a stigma,” he said.

The Common Application, a nearly universal form people can use to apply for undergraduate study, has already removed a box asking prospective students about their criminal histories, but it’s still something that colleges and universities can ask as a supplemental question. Supporters of the bill point to studies showing that a criminal history can mean a student is automatically denied admission or that they could stop the application process once they reach a section asking about their criminal past as critical reasons why it’s needed.

Protections are expected to be built into the measure that prevent schools from being in the dark about a student’s past if it includes violence. The bill is slated to also not prevent a college or university from inquiring about a student’s criminal history after admission.

The legislation is still being drafted, so there are few specifics on the bill. But he says it will be the same general concept as the employment ban-the-box effort. One thing still being examined is how to deal with disciplinary records from students’ high school days.

“We were finding that a lot of different districts do it differently in terms of how they apply their sanctions,” said Rodriguez, who is also working on the ban-the-box for employment measure.

Gardner said the education version of ban the box sounds like something he could support.

“Just kind of an instant reaction to it is I’m actually more favorably disposed to that than I am the ban-the-box for employment,” he said. “We ought to ensure that people who are seeking an education who had problems in the past but put them behind them have an opportunity to be admitted.”

House Bill 1025 now heads to the House Appropriations Committee for approval.

Mohammad, who has now secured three jobs with employers who didn’t ask about his criminal history up front, said it’s all about getting a chance.

“You can’t do that when the first thing you tell somebody is, ‘Hi, my name is Majid. I’m a felon,’ ” Mohammad said.

Updated Wednesday, Jan. 30, 2019 at 3:45 p.m.: This story has been updated to correct where state Rep. Matt Soper, a Republican, is from. Soper is from Delta.

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