Public Employers: Beware Nuanced State “Ban-the-Box” Legislation

We have all heard of the so-called “Ban-the-Box” legislation coming out of different states for the private sector. There has been broader application for the public sector, and now we are finding it is containing more nuances on a state-by-state basis.

Last year, the Utah legislature passed a statute that prohibited public employers excluding applicants from interviews by requiring them to disclose criminal convictions on an application. The public employer in Utah still may ask about a criminal record during or after the initial interview, and consider that information when making a hiring decision. The Utah legislation also made clear that this prohibition extended to most state agencies, state colleges or universities, and municipalities, counties, and special districts. Exempted from the prohibition were any part of the criminal or juvenile justice system, those working with vulnerable populations, the Department of Alcoholic Beverage Control, law enforcement, and any entity performing financial or fiduciary functions.

This year, both Colorado and Arizona amended their own limited ban-the-box legislation to cover more ground. In Arizona, employers now may not disqualify an applicant from any state or political subdivision simply because they have a criminal background, with certain exceptions. Those exceptions include those who must have a license or certificate when working as law enforcement officers, private investigators, security guards, and educators. Instead, there is an adjudication process for those seeking a license who have a criminal background.

In Colorado, state agencies who are exempt now include the Department of Revenue in addition to the state departments of public safety and corrections. In addition, Colorado legislation specifies when a criminal record may not be taken into account. This includes arrest records, pardons, expunged records, and orders of collateral relief with respect to a licensure necessary for the work. It also dictates that those caring for vulnerable populations, such as children or the ill and aged, should have criminal records taken into account when determining whether they are qualified for the position.

Employers Council has long-standing expertise in providing legal counsel to public sector employers. For more information, or to determine whether your processes comply with “ban-the-box” restrictions, consult with your assigned staff representative.