Peter Dybing spent four months sifting through 700 job applications looking for one that didn’t ask the question “Have you ever been convicted of a criminal offense?”
“I wanted to become a firefighter,” he said — but a robbery conviction at 18 made landing that first job an uphill struggle.
Dybing finally found a small, volunteer fire department in New Mexico that asked whether he’d been convicted of a crime in the last seven years. He was hired there and eventually worked his way up to a job as chief officer on a federal disaster response team.
Today, Dybing is an advocate of “ban the box,” a bill that would prohibit employers from asking about past criminal convictions on that initial application. Democrats have tried to pass it before, but it always died in the Republican-controlled Senate. Now, with Democrats holding the majority in both chambers of the statehouse and a more business-friendly version of the bill, this could be the year it happens.
Rep. Leslie Herod, D-Denver, says she’s confident that her new bill, HB19-1025, is on its way to Gov. Jared Polis’ desk. It passed out of the House Judiciary Committee on Tuesday on an 8-3 vote.
“This bill does not require anyone to give anyone a job,” Herod said. “It just allows them to have a face-to-face conversation.”
Herod’s bill would prohibit most employers across Colorado from including questions about criminal history on initial job applications. The bill makes exceptions for jobs like teachers and bankers because state law says certain convictions are disqualifying.
Also, unlike past efforts, this bill doesn’t prohibit an employer from asking about someone’s criminal history during an interview. And it explicitly states that applicants can’t sue a business that breaks the rules. Instead, the bill creates a complaint process through the Department of Labor.
“I want to thank the sponsors for working with us to ensure that the bill works for not just employees but for employers as well,” Colorado Competitive Council Director Nick Colglazier said.
The changes didn’t win over everyone.
Rep. Terri Carver, a Republican from Colorado Springs, raised a concern at Tuesday’s hearing that the definition of an employer was too broad and could include people like her neighbor who plans to hire someone to help her around the house.
“I can assure you my next-door neighbor, when she is looking to make that decision, doesn’t think she has entered into Colorado labor law,” Carver said.
People who oppose creating a blanket ban on the question point to people like Dybing as proof the job market works as it’s currently configured. He found a small fire department willing to take a chance on him and worked his way up to a leadership position. He created a new life for himself much in the same way as the father of Sage Naumann, the Senate Republican communications director.
“The beauty of giving somebody a second chance starts in our hearts, not our laws,” Naumann said. “As the son of a felon who served time in prison, rebuilt his life, started a business and bought a home, it’s sad that Democrats believe more government regulations on small business is the solution.”
But Dybing thinks this overlooks something significant about his success story. Yes, he worked hard to rehabilitate himself, but he also came from an well-connected and well-to-do family. His parents paid most of his bills while he spent four months searching for a firefighting job. And when Dybing needed a job straight out of prison, his father turned to a family friend to hire his son at a retail store, no questions asked.
“That was about my level of privilege,” Dybing said. “That is not true for about 90 percent of people coming out of prison.”
The campaign to block employers from asking about criminal histories started in the mid-2000s as online applications started to become popular.
At least 33 states and more than 150 cities and counties have passed some version of the law, and in 2012, Colorado banned state agencies from checking on someone’s background until the person is a finalist for a job or has been given a conditional offer.
“In my opinion, Herod’s bill is the most employer-friendly version of ‘ban the box’ in the country,” said Colorado Center for Law and Policy attorney Jack Regenbogen. “An employer could ask at any point except the initial application.”
But opponents and some business groups say removing the box is enough to cause a significant unintended consequence.
Researchers from Rutgers University and the University of Michigan studied states before and after the implementation of similar laws and published a study in 2017. When employers could ask about criminal history on the initial job application, they found businesses were 7 percent more likely to call people with “white-sounding” names. But when those same employers couldn’t ask the question their preferences for white applicants jumped to 43 percent.
“We believe that the best interpretation of these results is that employers are relying on exaggerated impressions of real-world racial differences in felony conviction rates,” according to the study.
It’s a troubling correlation, but also troubling, Herod said, is the connection between recidivism rates and employment.
“Look, if someone can’t work, can’t afford to feed their family, can’t afford to pay their restitution, they could make decisions that are not productive for society or safe for us,” Herod said. “So, I believe ‘ban the box’ is not only about criminal justice reform. It’s also about public safety and allowing folks to live their lives with dignity and earn a living, period.”
Herod plans to introduce or support a series of criminal justice reform bills in 2019, including bail reform, reinstating voting rights for people on parole and changing the definitions for felony possession on certain drugs.
“We are the ones who are paying for people who are in corrections or who re-enter into corrections. We are the ones who pay for their employment and training opportunities and then if they can’t get gainful employment in the real world, then we pay for that on the back end … ,” Herod said. “It is particularly the role of government to ensure that people have an opportunity to earn a living.”
And therein lies the central divide between Herod and her Republicans colleagues at the Capitol that has previously kept this bill from becoming law. They disagree about whether a law is the best way to nudge employers toward taking a chance on someone with a criminal conviction.
Some companies — including Walmart, Target, Home Depot, and Bed Bath & Beyond — have voluntarily removed the question from their applications.
“I’ve yet to meet a lawmaker on either side of the aisle that disagrees with giving individuals a second chance,” Naumann said. “I think we simply have a fundamental disagreement about how to accomplish that.”