First Regular Session Sixty-sixth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 07-0262.01 Kristen Forrestal SENATE BILL 07-029 SENATE SPONSORSHIP Schultheis, HOUSE SPONSORSHIP Lambert, and Looper Senate Committees House Committees State, Veterans & Military Affairs A BILL FOR AN ACT Concerning employer participation in the extended federal basic employment verification pilot program for the purpose of determining the work eligibility status of employees. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Requires all nongovernmental employers within the state to apply to participate in the extended federal basic employment verification pilot program (program) and to participate if accepted. Imposes a fine against an employer that does not apply to participate in the program. Requires the department of labor and employment to put a mechanism in place to inform employers of the requirement to apply for participation and how to comply and to post this information on the department's website. Upon receipt of a valid complaint of a violation of these provisions, requires the director of the division of labor to investigate the complaint. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Part 1 of article 2 of title 8, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 8-2-123. Legislative declaration - definitions - employee's work eligibility status - federal basic employment verification pilot program - department of labor and employment - duties. (1) (a) The general assembly hereby finds and determines that: (I) Ensuring that Colorado employers employ persons eligible to work within Colorado is an issue of statewide concern. (II) It is in the best interest of the employers in Colorado for all employers to follow federal law as it applies to the hiring of persons who are authorized to work in the United States. (III) Employers who violate the federal employment laws with respect to the hiring of persons who are unauthorized to work in the United States places an undue economic burden on employers who attempt to hire only persons who are authorized to work in the United States. (IV) Strict adherence to legal hiring practices will decrease illegal immigration into Colorado and substantially reduce the millions of dollars leaving Colorado's economy to other countries. (V) Employers in Colorado who hire unauthorized persons create an attractive environment for illegal immigrants to locate within Colorado, which costs taxpayers millions of dollars to provide public education, health care, and other services and, in addition, negatively affects our judicial system. (b) The general assembly therefore finds and determines that it is in the best interest of the state for all employers to verify the social security numbers and work eligibility status of newly hired employees and that it is important that every employer in the state of Colorado apply for participation in the extended federal basic employment verification pilot program for the purpose of verifying the work eligibility status of newly hired employees. (2) As used in this section: (a) "Employer" means a person transacting business in Colorado who, at any time, employs another person to perform services of any nature and who has control of the payment of wages for such services or is the officer, agent, or employee of the person having control of the payment of wages; except that "employer" does not include the federal government, the state of Colorado, another state, or a political subdivision of Colorado or another state. (b) "Program" means the basic employment verification pilot program created pursuant to 8 U.S.C. sec. 1324a, as expanded to include all fifty states in the "Basic Pilot Program Extension and Expansion Act of 2003", Pub.L. No. 108-156. (3) (a) Each employer in Colorado shall apply to participate in the program for the purpose of verifying the work eligibility status of each of the employer's newly hired employees by the following dates: (I) An employer with two hundred or more employees shall apply to participate in the program no later than November 1, 2007; (II) An employer with at least fifty employees but fewer than two hundred employees shall apply to participate in the program no later than July 1, 2008; and (III) An employer with fewer than fifty employees shall apply to participate in the program no later than July 1, 2010. (b) An employer shall submit an application to participate in the program no less frequently than every six months until the employer is accepted into the program. An employer that is accepted into the program shall agree to participate in the program. An employer shall retain records for audit purposes that show that the employer has applied to the program and, following acceptance, show that the employer is an active participant in the program. (c) For each thirty-day period for which an application for participation in the program has not been submitted to the federal department of homeland security, an employer that fails to apply for participation in the program pursuant to paragraph (a) of this subsection (3) shall be subject to a fine of: (I) At least three thousand dollars but not more than five thousand dollars if the employer has two hundred or more employees; (II) At least one thousand dollars but not more than two thousand dollars if the employer has at least fifty employees but fewer than two hundred employees; (III) At least five hundred dollars but not more than one thousand dollars if the employer has fewer than fifty employees. (d) The department of labor and employment shall verify that each employer has complied with paragraph (a) of this subsection (3) within ninety days after the first finding of noncompliance. If the employer is not in compliance, the department of labor and employment shall fine the employer the maximum fine amount pursuant to paragraph (c) of this subsection (3). (e) Upon request of the director of the division of labor, an employer shall submit evidence that the employer has submitted an application to participate in the program to the federal department of homeland security. Upon receipt of two complaints that an employer has not complied with this section, the director shall request the submission of such evidence within thirty days after the second complaint. The director shall levy a fine against an employer pursuant to paragraph (c) of this subsection (3) for each calendar month the employer fails to submit such evidence. (4) The department of labor and employment, with the cooperation of the secretary of state, shall put a mechanism in place to notify each employer of the requirements of this section and how to comply and shall make the information available on the department's web site. (5) (a) An employer shall immediately terminate the employment of an employee upon receipt of a final notice from the department of homeland security of nonconfirmation of work eligibility concerning such employee. (b) Upon receipt of a credible complaint as determined by the director of the division of labor that an employer is violating the provisions of this subsection (5), the director, or his or her designee, shall investigate the complaint to determine if the employer is in violation of paragraph (a) of subsection (3) of this section. The director shall fine a participating employer up to fifty dollars per day for each employee not terminated in accordance with the basic pilot program agreement. SECTION 2. Effective date - applicability. (1) This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution, (August 8, 2007, if adjournment sine die is on May 9, 2007); except that, if a referendum petition is filed against this act or an item, section, or part of this act within such period, then the act, item, section, or part, if approved by the people, shall take effect on the date of the official declaration of the vote thereon by proclamation of the governor. (2) The provisions of this act shall apply to acts occurring on or after the applicable effective date of this act.