Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0908.01 Kristen Forrestal x4217HOUSE BILL 16-1202 HOUSE SPONSORSHIP Wist, Humphrey, Klingenschmitt, Dore, Rankin, Willett, Joshi SENATE SPONSORSHIP Tate, 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, 2017, 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 (director) 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 knowingly: Fails to submit the required documentation to the director; Submits false or fraudulent documentation; or Fails to participate in the e-verify program. For a subsequent offense, the employer is subject to a fine of up to $25,000 and 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 website, 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 website must also include information regarding the requirements of the bill and the penalties for noncompliance. The bill takes effect January 1, 2017. 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. Employment verification requirements - audits - fine for fraudulent documents - cash fund created - definitions. (1) Definitions. 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. (b) "Department" means the department of labor and employment. (a) (c) "Director" means the director of the division. (b) (d) "Division" means the division of labor in the department of labor and employment. (c) (e) "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; 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 engages in business who has ten or more employees. "Employer" includes the state and any political subdivision of the state with ten or more employees. (f) "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. (g) "Federal law" means 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) (h) "Unauthorized alien" has the same meaning as set forth in 8 U.S.C. sec. 1324a (h) (3). (2) Participation required. (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, 2017, 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, 2017, 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 (4) of this section. (d) Upon entering the agreement described in paragraph (c) of this subsection (2), 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) Documentation. 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) 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) Penalties - definition. (a) An employer who with reckless disregard, knowingly 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 suspension of all the employer's business licenses for up to six months. The moneys division shall transmit money collected pursuant to this subsection (4) shall be deposited to the state treasurer for deposit in the employment verification cash fund, which is hereby created in the state treasury. The moneys general assembly shall appropriate money 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 money in the fund shall remain remains in the fund and does not revert to the general fund or any other fund at the end of any fiscal year. (b) For purposes of this subsection (4), "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. (5) Notification. (a) The department shall notify every employer of the requirements of this section and shall publish a link to its website where an employer can access the notice described in paragraph (b) of this subsection (5). The department shall include the notice and website 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 shall permanently post on its website 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, 2017, 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. (6) Affirmative defense. (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 (b) of subsection (2) of this section; and (II) The employer participates in the e-verify program in accordance with paragraph (c) of subsection (2) 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 (c) of subsection (2) 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) (7) 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 that is fully consistent with applicable provisions of federal law. (8) 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. (9) 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 (2) (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 website 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 website 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 website. The secretary of state's website shall must also provide a link to the e-verify website 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, 2017; 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 2016 and, in such case, will take effect on January 1, 2017, or on the date of the official declaration of the vote thereon by the governor, whichever is later.