What to Know About Colorado’s Job Application Fairness Act

Understanding Colorado’s Job Application Fairness Act

Compliance with federal laws or regulations from a state government concerning background checks is necessary for a functional hiring process. Observance contributes to a procedure that helps you identify strong candidates while avoiding potential civil fines or lawsuits. Unfortunately, compliance isn’t always a simple matter—particularly with frequent law changes across many states. In Colorado, for example, employers must make meaningful changes when the Job Application Fairness Act (JAFA) is enacted.

This law applies to all employers in Colorado starting from July 1, 2024. After this date, all companies must comply with the law when hiring new employees. Let’s review what the law does, explore its intent, and consider how this may affect your workflow.

What does the law change?

The JAFA, once in effect, will require employers to change the job application forms they use online and in person. After July 1, 2024, you will no longer be able to collect the following information on an initial employment application:

• Dates of attendance in high school or during college
• The applicant’s birthday
• The candidate’s actual age

Employers may not ask any questions related to these categories on an application. What about regulated industries with an age minimum or maximum for hiring? The law carves out a limited exception in specific cases:

• When a federal law applies
• When a state law applies and concerns a “bona fide occupational qualification”
• When there is such a qualification in place to protect occupational or public safety

In such cases, you may ask applicants to confirm that they verify with the necessary age requirements. List the acceptable age range defined in the law and ask, in general, if the applicant would comply with those regulations. Even in the exception cases you still can’t ask a candidate about their age. You may only ask if hiring them would not violate the law.

What is the purpose of the law?

Colorado legislators identified age discrimination as a potential barrier to employment for many in the workforce. Though there are already laws barring discrimination against workers who are 40 years of age or older, employers may use other information to dismiss applications silently. Legislators want employers to evaluate a resume on an applicant’s initial merits rather than by their age.

The intent behind the law is similar to Colorado’s “Chance to Compete Act, ”a type of “ban the box” law. This law prescribes that applications can’t contain language that states or implies that individuals with criminal histories won’t get the job. You also cannot use the initial application to ask about criminal history. You can still search later in the process—but the goal is to let you first evaluate a candidate on what they bring to the table.

Collecting information later in the process

Note that while the law governs the application process, it does not extend further into the hiring process. Although you must wait to collect age-related information, you may do so anytime after processing the first application. This distinction is important because background checks work best when you can supply information such as an applicant’s date of birth.

Since criminal records don’t contain personal information such as Social Security numbers, matching records to an individual requires other data. Date of birth is one of the simplest ways to reduce the likelihood of accessing records for a non-applicant with the same name. When you prepare for vetting applicants, you can speak with them to learn the necessary information.

You may also choose a self-service option, such as our Applicant Self-Order feature. In this setup, you can invite applicants to engage in the process of ordering a criminal history report. This online, guided workflow has applicants submit information and provide electronic signatures directly. It’s an excellent tool for supporting compliance operations in companies that face laws like Colorado’s JAFA.

What if you violate the provisions of the Job Application Fairness Act?

If you do not change your applications in time and violate the law, an applicant may lodge a complaint with the Colorado Department of Labor and Employment. For a first violation, your business will receive only a warning and a time frame to comply. Second and subsequent violations will carry monetary fines reaching thousands of dollars. Altering your applications before the compliance deadline makes it simple to stay on the right side of the law going forward.

Does the law impact when you can conduct a background check?

No, although you may need to adjust your procedure and the timing of background checks to accommodate the law’s requirements. You can still order a background check anytime in the hiring process. Since you will need information such as an individual’s date of birth, you may need to delay when you conduct the formal process of ordering and reviewing reports. You may wait until after an interview or ask an individual to supply the necessary data once you select their resume to move forward in the hiring process.

Stay up to date with compliance changes

As states aim to introduce fairness into the hiring process, businesses must remain ready to adapt to local law or regulation. The trend towards additional legislation and regulation could expand the potential pool of job applicants to broaden access to opportunities. From pay disclosure laws to changes in drug screening and background checks, the regulatory landscape has undergone significant changes in recent years.

Colorado employers must ensure their procedures align with the Job Application Fairness Act requirements by July 2024. Prepare new job applications that omit questions or boxes asking for a candidate’s date of birth and other prohibited information. Remember to make these updates everywhere, including online applications. You can seamlessly transition with a modified policy and a fresh application design.