First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 13-0015.01 Christy Chase x2008 HOUSE BILL 13-1098 HOUSE SPONSORSHIP Swalm, SENATE SPONSORSHIP Harvey, House Committees Senate Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning the requirement that all employers in the state verify the work eligibility status of new employees through the federal electronic verification program. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Current law requires employers in Colorado to examine the legal work status of newly hired employees, within 20 days after hiring, using paper-based forms of identification. The bill will instead require all employers, upon hiring a new employee on or after January 1, 2014, to participate in the federal electronic verification program (e-verify program) to determine the work eligibility status of newly hired employees. Employers must retain a written or electronic copy of the employment eligibility information received through the e-verify program regarding each newly hired employee, and the director of the division of labor in the department of labor and employment (department) may review employers' documentation and conduct random audits of employers to ensure compliance. An employer is subject to a fine of up to $5,000 for a first offense and up to $25,000 for a second offense if the employer, with reckless disregard: Fails to submit the required documentation to the director; Submits false or fraudulent documentation; or Fails to participate in the e-verify program. For any subsequent offense, the employer is subject to a fine of up to $25,000 and a suspension of all the employer's business licenses for up to 6 months. The bill also requires the department, as part of its quarterly electronic publication to all employers in the state, to notify employers of the requirements of the bill and to include a link to its web site, on which a permanent notice must be posted detailing the requirements of the bill and instructions for enrolling in the e-verify program. The secretary of state's web site must also include information regarding the requirements of the bill and the penalties for noncompliance. The bill takes effect January 1, 2014. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, amend 8-2-122 as follows: 8-2-122. Verification of employee work eligibility status - short title - legislative declaration - definitions - e-verify program - audits - fines - cash fund. (1) This section shall be known and may be cited as the "Colorado Mandatory E-verify Act". (2) (a) The general assembly hereby finds and determines that: (I) The general assembly's top priority for the 2013 legislative session is putting Coloradans back to work; (II) Our state has over two hundred thousand people out of work who desperately need something better for themselves and their families; (III) Unemployment among veterans returning from Iraq or Afghanistan is significantly higher than the rate among the population at large; (IV) Youth and minorities have an even tougher time finding work; (V) Every day, tens of thousands of unauthorized aliens head off to work in Colorado, many of them doing so in defiance of Colorado law mandating that employers verify the work eligibility of newly hired employees by checking paper-based forms of identification, such as driver's licenses or social security cards; (VI) These unauthorized workers drive down the value of labor, especially for those on the lowest rungs of the economic ladder; (VII) While the current law, which was passed during the 2006 first extraordinary session of the sixty-fifth general assembly addressing immigration reform, requires employers to verify work eligibility using paper-based forms of identification, that mode of verification is outdated and relatively easy to forge; (VIII) Colorado citizens struggling to find scarce jobs deserve better, and it is time to bring employment verification into the twenty-first century by mandating that all Colorado employers use the internet-based federal employment verification system, known as "e-verify", administered by the United States department of homeland security, to better ensure that only those Coloradans who are legally entitled to work here are doing so; (IX) Anyone, including legitimate job-seekers, can go on the e-verify web site and run a self-check to make sure they are eligible and clear up any potential problems, such as identity theft, before applying for work; (X) E-verify is already widely used in Colorado and throughout the country at large; (XI) Over twenty thousand Colorado business sites and seven hundred thousand business sites across the nation use the system on a voluntary basis; (XII) Seven other states have already passed legislation requiring private employers to use e-verify, a mandate that the United States supreme court has declared constitutional. (b) The general assembly therefore finds and determines that it is: (I) 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 (II) Important that every employer in Colorado participate in e-verify for the purpose of verifying the work eligibility status of newly hired employees. (1) (3) As used in this section, unless the context otherwise requires: (a) "Business license" means a license, permit, certificate, approval, registration, charter, or similar form of authorization required by law and issued by an agency for the purpose of operating a business in this state. (a) (b) "Director" means the director of the division. (b) (c) "Division" means the division of labor in the department of labor and employment. (c) (d) "Employer" means a person or entity that: (I) Transacts business in Colorado; (II) At any time, employs another person to perform services of any nature in Colorado; and (III) Has control of the payment of wages for such services or is the officer, agent, or employee of the person or entity having control of the payment of wages. (e) "E-verify program" or "program" means the electronic employment verification program, formerly known as the "basic pilot program", authorized under Pub.L. 104-208, Division C, Title IV, Subtitle A, 110 Stat. 3009-655, (Sept. 30, 1996), as amended, and jointly administered by the United States department of homeland security and the social security administration, or its successor program. (f) "Federal law" means section 274A of the federal "Immigration and Nationality Act", as amended, 8 U.S.C. sec. 1324a, and any federal regulations adopted pursuant to 8 U.S.C. sec. 1324a. (d) (g) "Unauthorized alien" has the same meaning as set forth in 8 U.S.C. sec. 1324a (h) (3). (2) (4) (a) On and after January 1, 2007, within twenty days after hiring a new employee, each employer in Colorado shall affirm that the employer has examined the legal work status of such newly hired employee and has retained file copies of the documents required by 8 U.S.C. sec. 1324a; that the employer has not altered or falsified the employee's identification documents; and that the employer has not knowingly hired an unauthorized alien. The employer shall keep a written or electronic copy of the affirmation, and of the documents required by 8 U.S.C. sec. 1324a, for the term of employment of each employee Pursuant to federal law, it is unlawful for an employer to knowingly hire an unauthorized alien. (b) On or after January 1, 2014, upon hiring a new employee to perform work in Colorado, each employer in Colorado shall participate in the e-verify program for the purpose of verifying the work eligibility status of each of the employer's newly hired employees. The employer shall retain a written or electronic copy of the employment eligibility information it receives through the e-verify program regarding each newly hired employee in accordance with e-verify program standards. (c) Upon hiring a new employee to perform work in Colorado on or after January 1, 2014, an employer shall enter into an agreement as required by the United States department of homeland security to participate in the e-verify program and shall comply with the requirements for participating in the program. If the agreement is terminated by the United States department of homeland security based on the employer's failure to comply with the established procedures or legal requirements set forth in the agreement, the employer is subject to the penalties set forth in subsection (6) of this section. (d) Upon entering the agreement described in paragraph (c) of this subsection (4), the employer shall maintain a copy of the agreement, showing that the employer is an active participant in the e-verify program, and shall notify its employees that it is participating in the program in the manner required by the agreement. (3) (5) Upon the request of the director, an employer shall submit documentation to the director that demonstrates that the employer is in compliance with the employment verification requirements specified in 8 U.S.C. sec. 1324a (b) and documentation that the employer has complied with the requirements of copies of the e-verify employment eligibility information regarding new employees and a copy of the employer's agreement with the United States department of homeland security, as required by subsection (2) (4) of this section. The director or the director's designee may conduct random audits of employers in Colorado to obtain the documentation. When the director has reason to believe that an employer has not complied with the employment verification and examination requirements enrolled in the e-verify program or has failed to verify a new employee through the e-verify program, the director shall request the employer to submit the documentation. (4) (6) (a) An employer who, with reckless disregard, fails to submit the documentation required by this section, or who, with reckless disregard, submits false or fraudulent documentation, shall be or fails to participate in the e-verify program to verify the employment eligibility of each newly hired employee is subject to a fine of not more than five thousand dollars for the first offense and not more than twenty-five thousand dollars for the second and offense. For any subsequent offense, the employer is subject to a fine of not more than twenty-five thousand dollars and a suspension of all the employer's business licenses for up to six months. The division shall transmit moneys collected pursuant to this subsection (4) shall be deposited (6) to the state treasurer for deposit in the employment verification cash fund, which is hereby created in the state treasury. The general assembly shall appropriate moneys in the fund shall be appropriated to the department of labor and employment for the purpose of implementing, administering, and enforcing this section. The moneys in the fund shall remain in the fund and do not revert to the general fund or any other fund at the end of any fiscal year. (b) For purposes of this subsection (6), "participate in the e-verify program" means to: (I) Enroll in the program by entering into an agreement with the United States department of homeland security; and (II) Use the program to verify the work eligibility status of each new employee. (7) (a) As part of its quarterly electronic publication to employers, the department of labor and employment shall notify every employer of the requirements of this section and shall include in the publication a link to its web site where an employer can access the notice described in paragraph (b) of this subsection (7). The department shall include the notice and web site link in each quarterly electronic publication distributed to employers on and after the effective date of this section, as amended. (b) In connection with the statement and information required to be posted pursuant to section 8-2-124, the department of labor and employment shall permanently post on its web site a notice that explains the requirements of this section and includes at least the following information: (I) That federal law prohibits an employer from knowingly employing an unauthorized alien; (II) That as of January 1, 2014, employers who hire new employees to perform work in Colorado are required to verify the employment eligibility of the new employees through the e-verify program; and (III) Instructions for the employer on how to enroll in the e-verify program. (8) (a) An employer has a rebuttable presumption that the employer, acting in good faith, did not knowingly employ an unauthorized alien if: (I) The employer complies with the employment verification requirements specified in federal law and in paragraph (a) of subsection (4) of this section; and (II) The employer participates in the e-verify program in accordance with paragraph (b) of subsection (4) of this section, and the information obtained in accordance with the e-verify program indicates that the employee's work eligibility status allowed the employer to hire and retain the employee. (b) An employer has a rebuttable presumption that the employer, acting in good faith, did not wrongfully terminate an individual if: (I) The employer participates in the e-verify program in accordance with paragraph (b) of subsection (4) of this section; and (II) The employer received a final notice of nonconfirmation of work eligibility on the individual through the e-verify program. (c) An employer that shows that it complied in good faith with the requirements of federal law establishes an affirmative defense that the employer did not intentionally or knowingly employ an unauthorized alien. (5) (9) Construction. It is the public policy of Colorado that this section shall be enforced without regard to race, religion, gender, ethnicity, national origin, or disability and be construed in a manner so as to be fully consistent with applicable provisions of federal law. (10) Implementation. This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens. (11) Severability. If any provision of this section is held invalid, the invalidity does not affect other provisions of this section that can be given effect without the invalid provision. SECTION 2. In Colorado Revised Statutes, 8-2-124, amend (2) (a) (I) as follows: 8-2-124. Electronic verification program - availability - notice to employers - definitions. (2) (a) (I) As part of its quarterly electronic publication distributed to employers, the department shall, at a minimum, notify every employer of the federal law against hiring or continuing to employ an unauthorized alien and of the availability of, and the requirement under section 8-2-122 (4) (b) to participate in, the optional electronic verification program to verify the work eligibility status of new employees. SECTION 3. In Colorado Revised Statutes, repeal article 17.5 of title 8. SECTION 4. In Colorado Revised Statutes, 24-21-112, amend (2) as follows: 24-21-112. Electronic verification program - notice - employer responsibilities - definitions. (2) The secretary of state, in consultation with the department of labor and employment, shall post on the secretary of state's web site information pertaining to the prohibition against hiring or continuing to employ an unauthorized alien, as defined in 8 U.S.C. sec. 1324a (h) (3), and the availability of and the requirements for participation in the electronic verification program as a means for employers to verify the work eligibility status of new employees, and the requirements for verifying the work eligibility status of newly hired employees and the penalties for noncompliance as set forth in section 8-2-122, C.R.S. The web site posting required by this subsection (2) shall must appear in the same format as required by section 8-2-124 (2) (a), C.R.S., and shall must appear in a conspicuous location on the secretary of state's web site. The secretary of state's web site shall must also provide a link to the e-verify web site available through the internet portal for the United States citizenship and immigration services, or its successor agency. SECTION 5. Act subject to petition - effective date. This act takes effect January 1, 2014; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.