Starting July 1, 2024, Colorado’s newly signed SB 23-058 – known as the Job Application Fairness Act (the Act) – prohibits employers from requesting an individual include their “age, date of birth, or dates of attendance at or date of graduation from an educational institution” on an initial application for employment.
In accordance with the Act, employers may request or require an individual provide additional application materials, including copies of certifications, transcripts, and other materials created by third parties, at the time of an initial employment application, if the employer notifies the individual that they can redact the prohibited identifying information.
An employer may request an applicant to verify compliance with age requirements if there is:
- a bona fide occupational qualification pertaining to public or occupational safety;
- a federal law or regulation; or
- a state or local law or regulation based on a bona fide occupational qualification.”
However, employers must be mindful that the requested verification(s) must not require the individual to disclose information now prohibited under the Act (e.g., an individual’s specific “age, date of birth, or dates of attendance at or date of graduation from an educational institution”).
The statute does not create or authorize a private right of action and sets penalties enumerated in the Act as an aggrieved party’s sole remedy. Penalties for violating the Act are progressive in nature:
- For the first violation, a warning and an order requiring compliance within fifteen business days;
- For the second violation, an order requiring compliance within fifteen business days and a civil penalty not to exceed $1,000 dollars; or
- For a third or subsequent violation, an order requiring compliance within 15 business days and a civil penalty not to Exceed $2,500 dollars.
Employers will not be subject to penalties for a second or subsequent violation unless the employer:
- Failed to comply with an order requiring compliance within 15 business days after the date of the order; or
- Complied with an order requiring compliance within 15 business days but then committed a violation of this section more than 15 business days after the issuance of the Order.
Violations will be assessed based on each distinct job posting and not on each instance of an individual responding to the non-compliant job posting.
As the statute’s July 1, 2024 enforcement date approaches, look for additional guidance from the state concerning procedures for handling complaints and notice to employers along with requirements for retaining/maintaining relevant employment records once a complaint has been filed. In the meantime, employers should begin outlining plans for updating existing job applications to assure compliance with the Act ahead of the July 2024 deadline.