In this Capitol Report:
This Capitol Report is brought to you by:
State Policy News
House Committee OKs CACI-Opposed “Ban-the-Box” Bill
On Tuesday, HB-1388, sponsored by Representative Beth McCann (D-Denver), was approved on a partisan 6-to-5 vote by the House Judiciary Committee. The bill now goes to the House Appropriations Committee.
The bill should be viewed within the broad context of the Democratic Party’s national and state political campaign to address income inequality through a wide variety of policy proposals from increasing the minimum wage to decreasing so-called wage inequality. Colorado’s House Democrats have proposed a number of such bills, which CACI has opposed, and those that passed the House have died in the Senate.
In addition, Representative McCann is a candidate for the Denver District Attorney. It’s a fair observation to say that the bill is designed to enhance her political chances among important constituencies in Denver.
The CCLP has assembled a coalition of more than fifty organizations to back the bill. The coalition ranges from 9to5 Colorado and the Colorado Fiscal Institute to the Bell Policy Center and Mile High United Way. The coalition includes religious organizations and economic/social-justice community organizations.
Here’s a summary of the bill, according to its non-partisan fiscal note,
Summary of Legislation
This bill prohibits an employer, excluding the state and its political subdivisions, from advertising or including language in an employment application that indicates that a person with a criminal history may not apply for a position. An employer may not make an inquiry about a candidate’s arrest history or criminal convictions until it selects a candidate for an interview or extends an offer of employment to that person. Limited exceptions are provided for circumstances when:
- the law forbids a person from being employed due to a criminal conviction or requires an employer to consider a candidate’s criminal history;
- 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 a candidate from obtaining this
Employers must retain applications for nine months and provide them for review to the Colorado Department of Labor and Employment (CDLE) upon request within three days. The CDLE is directed to enforce the law and the bill provides for a range of penalties associated with the size of the employer and number of prior violations. These penalties range from a warning to a fine of $2,500. The bill clarifies that violations under the bill do not authorize a private cause of action and evidence of violations are not admissible in any legal proceeding other than one initiated by CDLE for enforcement purposes.
Here is the critical provision of the bill for employers:
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.
The CACI Labor and Employment Council opposes the bill. Loren Furman, CACI Senior Vice President, State and Federal Relations, testified against the bill. Here is an edited version of Loren’s prepared testimony:
I’m also speaking on behalf of the Grand Junction Chamber of Commerce, Durango Chamber of Commerce, Aurora Chamber of Commerce, Douglas County Business Alliance, Colorado Bankers Association, Independent Bankers Association, Colorado Contractors Association, Denver Metro Chamber of Commerce and Colorado Springs Regional Business Alliance.
I certainly am not insensitive to the stories from the witnesses today. Each of these individuals has had circumstances that are unique to them.
I am here to speak from the perspective of the employers, and we are not against giving people a second chance.
There are four reasons CACI opposes this bill:
- Choosing the right employee takes significant time, resources and costs on an employer;
- It would create false expectations for a job applicant;
- We want to be mindful of the workplace safety and liability risk for both employers and existing employees; and
- It does not apply a fair application because it exempts some employers and not others.
Choosing the best candidate for a job is an exhaustive process, and we are concerned that this bill is telling employers how they should conduct their hiring process.
Some of our members have told us that they are prohibited by federal law from hiring anyone with a criminal background so they would be required to do a background check on each applicant; to determine whether they can hire that person.
We believe employers should be able to rely on an applicant to self-report during the initial steps of the employment process;
If there is a situation in which an applicant had a circumstance in his life, he has an opportunity to explain that in the application.
Many of us did things in our lifetime that may have not been our fault. An employer is going to appreciate an applicant telling the truth from the start instead of finding out something later.
I am concerned this bill would create false expectations for a job applicant.
We’ve all been in a situation where we’ve been asked to interview and assumed that we got that call because we made the final cut!
This bill makes it even tougher for an applicant because they will think that they have an absolute shot at getting this job only to find out that their chances will be based on the background check.
When there is workplace violence and someone is hurt by that applicant or future employee, it creates a costly liability risk for employers.
The average settlement for a lawsuit claiming that an employer was negligent in its hiring is $1 million. And, 75 percent of the time, employers lose those lawsuits.
This could put plenty of businesses out of business which is why it’s important to have every piece of information about a potential employee from the start.
We find it interesting that this bill doesn’t apply to political subdivisions and only targets the private sector. Why are employers being treated differently in the bill?
We are always concerned with legislation that tells a private-sector employer how to run his or her operation. There have been almost 40 bills this session and the prior three sessions that have sought to do this. The more the General Assembly restricts employers, the harder it becomes for them to hire people.
We believe an employer knows exactly the type of person he or she is looking to hire and whether or not they are the best fit for the job.
So, we’d encourage you to allow our businesses across the State that right and ask for your “No” vote on this bill.
Statehouse reporter Ed Sealover of The Denver Business Journal observed that “At times, bill supporters on the committee got confrontational with leaders of business organizations like the Denver South Metro Chamber and Colorado Association of Commerce and Industry.”
For example, Representative Joe Salazar (D-Thornton), the most anti-business legislator under the Gold Dome, criticized Loren and her fellow business-association lobbyists after their testimony.
He said Loren and her colleagues were “not heartless” to the idea that individuals with criminal records should find employment but that the business lobbyists are “not with us” because they oppose HB-1388. In other words, Representative Salazar appeared to not comprehend that the business community could sympathize with the goal of jobs for individuals with criminal records but disagree with HB-1388 as an effective strategy to work towards that goal.
Representative Salazar said Loren and other business lobbyists come before the House committees to oppose bills being advocated by the Democrats and “always” say “the sky is falling.” He complained that the business lobbyists fail to provide the committees with “data” about the impact of the bills and always say “we don’t want government telling us what to do.”
Joining Representative Salazar in the confrontational questioning of, and sharp remarks to, Loren and her colleagues was Representative Pete Lee (D-Colorado Springs) and Representative Lois Court (D-Denver).
The bill is unlikely to survive in the Republican-controlled Senate, which reveals that it is mainly an election-year, Democratic political “message” proposal, like so many other bills offered up by the liberal/progressive House Democrats this session.
For example, an employer could look at a job application and see a large time gap in the applicant’s timeline that is not explained. That gap would quickly raise the question: What was the individual doing during this period?
If an employer is barred by HB-1388 from asking about an applicant’s criminal history on the application, the employer is still not prohibited from researching the individual on his or her own whenever the employer wants, starting with a simple Google search.
More importantly, an employer–using only the applicant’s name and date of birth–can quickly conduct a criminal-history check for the cost of $6.85 with a credit card on the Website of the Colorado Bureau of Investigation. If the applicant has resided in other states, then the employer can probably perform similar criminal-history background checks in those states.
For more information about HB-1388, contact Loren Furman, CACI Senior Vice President, State and Federal Relations, at 303.866.9642.
For news media coverage of HB-1388, read:
“Colorado ‘ban the box’ bill for job seekers with criminal records gets 1st OK,” by Ed Sealover, The Denver Business Journal, March 13th.
“’Ban the box’ legislation advances in Colorado Legislature,” by Peter Marcus, The Durango Herald, April 12th.
“Bill to keep criminal history questions off job applications advances,” by Joey Bunch, The Denver Post, April 12th.
“Why Colorado should ‘ban the box,’” op-ed, by Claire Levy and Beth McCann, The Denver Post, April 4th.
“Colorado bill would prevent screening job-seekers solely on criminal history,” by joey Bunch, The Denver Post, March 16th.
News Media Coverage
Below is recent news-media coverage of state and federal political, policy and governmental issues of interest to CACI:
“Colorado’s methane leak rule generally supported, study finds,” by Edward Graham, The Durango Herald, April 15th.
“Bill to allow quick response to mine spills passes Colorado House” by Peter Marcus, The Durango Herald, April 14th.
“Colorado lawmakers reach budget deal after Clean Power Plan impasse,” by John Frank, The Denver Post, April 13th.
“Agreement reached on Clean Power Plan funding at Colorado Capitol,” by Peter Marcus, The Durango Herald, April 13th.
“Rep. Clarice Navarro: Equal pay is already upheld in Colorado policy,” by Joey Bunch, The Denver Post, April 12th.
“House Democrats pen editorial on Colorado bills for Equal Pay Day,” by Joey Bunch, The Denver Post, April 12th.
“Water storage bill advances in Colorado Legislature,” by Peter Marcus, The Durango Herald, April 12th.
“Long bill’s passage a bipartisan success,” op-ed by Senator Ellen Roberts (R-Durango,” The Durango Herald, April 12th.
Federal Policy News
CACI Files Comments Against BLM’s Flaring Rule
The U.S. Bureau of Land Management (BLM) is seeking comments on its proposed rule to manage and regulate treatment of methane gas vented or flared by oil-and-gas developers. The proposed rule would hurt the already highly regulated oil-and gas-industry, encouraging developers to cap wells early and prematurely to avoid heavy fines and new regulatory burdens being proposed to eventually eliminate methane emissions.
A copy of CACI’s filed comments can be read here, with an excerpt below:
“The oil-and-gas industry is integral to the vibrance of our economy. It is integral in the ability of our state to build good schools, maintain and grow highly-paid jobs and keep the cost of living manageable for our communities. However, the BLM’s proposed rule will take away the very things keeping our state growing and thriving, by adding high-cost compliance and heavy-handed government regulations, without consideration for unintended consequences on our communities.”
CACI members with questions on this or other Federal issues should contact CACI Federal Policy Director Leah Curtsinger at 303.866.9641.