Starting July 1, 2024, new Colorado legislation will restrict employers from certain actions during the job application and hiring process. The Job Application Fairness Act (“JAFA”) restricts employers from asking about a job applicant’s age, date of birth, or dates of attendance/graduation at educational institutions, with limited exceptions for legal and safety needs. JAFA covers all employers in Colorado regardless of industry, public or private sector, or size.
Enforcement under JAFA will be left to the Colorado Department of Labor & Employment (“CDLE”). All complaints must be brought within 12 months of the alleged violation or risk being time-barred. Employers found to be in violation of JAFA will be ordered to comply within 15 business days for a first violation. Second and subsequent violations are punished by penalties of up to $1,000 for a second violation and $2,500 for a later violation. There is currently no private right of action embedded in JAFA.
The Colorado Department of Labor & Employment has issued a Notice & Formal Opinion interpreting JAFA, which is summarized below.
Employers May Not:
- Ask applicants to disclose their age in “initial applications.” This includes the date of birth, dates of attendance at an educational institution, or other inquiries that may lead to the disclosure of age (i.e. when he or she graduated high school).
- Break an “initial application” into several steps or phases in order to ask for age-identifying information in a subsequent phase. For example, employers may not state that their initial application only asks for a name and preferred location but later request an applicant’s date of birth prior to hire.
- Ask for additional submissions, such as a resume, without informing the applicant of the right to redact age-identifying information.
Employers May:
- Ask an applicant’s date of birth after extending an offer for hire in order to verify legal or safety requirements are met.
- Ask for additional application materials such as a CV or transcript; however, employers must advise applicants that they may redact age-identifying information.
- Ask if the applicant complies with bona fide occupational qualifications, federal statutes, regulations, and local statutes; however, the employer may not ask for the applicant’s specific age. For example, employers that serve alcohol may ask if the applicant is at least 18 years of age during the hiring process. After extending a job offer, the employer may require evidence of the applicant’s specific age.
In order to remain in compliance with JAFA beginning on July 1, 2024, employers are encouraged to review the JAFA requirements with all Human Resources staff, hiring managers, or recruiting staff. Additionally, we encourage employers to review their current application policies to include language indicating that Colorado applicants may redact all age-identifying information on submitted application materials including school transcripts and CVs.
Gordon Rees Scully Mansukhani's attorneys remain available for any inquiries, handbook reviews, and general counseling regarding these new changes. Please reach out to the authors or a member of the Employment Law practice group in Colorado for more information or assistance.