Colorado’s New Strict Requirements on Employment Eligibility Verification

Quick Hits

• Colorado now prohibits employers from retaining original versions of employee government identification documents for longer than ten hours.
• There is an express carveout for employers making and retaining copies of government identification documents.
• Employers must notify employees of the new prohibitions on retaining government identification documents when employment eligibility is verified, even if the employer does not require or retain original identification documents.
• Violations of the new law result in civil liability with a private cause of action, and criminal liability as a “bias-motivated crime.”

New Prohibitions

House Bill (HB) 26-1283, which amended Colo. Rev. Stat. § 8-2-124.5, significantly restricted employers’ ability to demand, confiscate, retain, or require the surrender of employee or applicant government ID documents including passports, drivers’ licenses, and other photoidentification cards. Employers may request and retain an employee’s or applicant’s government ID documents for the purposes of employment eligibility verification but may retain the documents for only ten hours. The law also expressly permits employers to make copies of employee or applicant government ID documents, which may be retained as an employment record. Employers may request and retain government ID documents as required by law and as required to comply with signed judicial warrants.

This new law covers all individuals in Colorado, including migrant and seasonal workers.

Required Notice and Acknowledgement

Whenever the employer verifies an individual’s employment eligibility, the employer must provide a notice to the individual that is in writing, in English, or in the individual’s primary language if the employer knows the individual’s primary language is not English and is acknowledged by the individual. The acknowledged notice must be retained as part of the individual’s employment records. The new law does not require that employees receive a physical copy of the notice, so electronic versions may be permissible. Further, the new law does not indicate the notice is only required if the employer verifies the individual’s employment using an original ID document; rather, it appears the notice is required any time employment eligibility is verified through any means.

Expanded Liability

HB26-1283 also amended Colo. Rev. Stat. §§ 818-5-903.5 and 18-9-121 to impose new civil and criminal liabilities on entities that violate the new law. Now, if an employer confiscates or possesses an individual’s government ID documents, that individual may request the immediate return of the government ID documents and may bring a civil lawsuit for any damages caused by the confiscation. In addition, employers face new criminal liability. If an employer confiscates an individual’s government ID documents, or provides or threatens to provide those documents to federal immigration authorities except when required by law, that employer will have committed a class 1 misdemeanor and a “bias-motivated crime.”

Looking Forward

• Employee and applicant employment eligibility verification processes must include a notice and individual acknowledgement. There is no state-standardized notice at this time.
• Both employers and their employees now face possible civil and criminal liability for retaining government ID documents beyond the statutory maximum time, and for providing those documents to federal immigration authorities if not required by law.

Ogletree Deakins’ Denver office will continue to monitor developments and will post updates on the Colorado and Immigration blogs as additional information becomes available.

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