Colorado’s 2023 Legislative Session Part IV: The Colorado Job Application Fairness Act (JAFA)

Denver, Colo. (July 31, 2024) - Although passed in the 2023 legislative session, the Colorado Job Application Fairness Act (JAFA) finally took effect on July 1, 2024. JAFA applies to private employers of all sizes (and their agents), as well as state or local government employers.

JAFA: Another Colorado Restriction on Pre-Employment Screening and Hiring

This new law prohibits age-related inquiries on an initial employment application, including an applicant’s:

• Age;
• Date of birth; or
• Dates of attendance at, or date of graduation from, an educational institution.

The law also prohibits other inquiries that may inadvertently or otherwise require disclosure of an applicant’s age. For example, employers may not ask when an applicant first voted or obtained a drivers’ license. 

Importantly, JAFA’s prohibition on such inquiries is limited to the “initial employment application,” which is defined as “all items the employer requires in order for an applicant to submit complete application materials for a position.” If an employer requests resumes, CVs, transcripts, or certifications as part of the initial employment application, the employer must notify the candidate they may redact or remove information that identifies their age, date of birth, or dates of attendance at or date of graduation from an educational institution. Employers may not circumvent this requirement by splitting their initial application process into two parts.

Exceptions

JAFA contains narrow exceptions to these requirements that allow an employer to verify compliance with age requirements imposed by or pursuant to:

• a bona fide occupational qualification pertaining to public or occupational safety;
• a federal statute or regulation; and
• a state or local law or regulation based on a bona fide occupational qualification.

These verification requests must not, however, require disclosure of an individual’s specific age, date of birth, or dates of attendance at or date of graduation from an educational institution on the initial employment application. For example, if an employee must be at least 16 years of age to perform a job to comply with federal or state child labor laws, an employer may ask whether the applicant is at least 16 years old on an initial employment application. 

Enforcement

The Colorado Division of Labor and Employment (CDLE) is charged with enforcement of JAFA. Of note, there is currently no private right of action. Individuals may file complaints with CDLE for alleged violations that occurred within the prior 12 months. If a violation is found, CDLE may issue orders requiring the employer to comply with JAFA within 15 business days. CDLE also may impose civil penalties of up to $1,000 for a second violation and up to $2,500 for subsequent violations or failure to comply with prior compliance orders. Each distinct job posting that violates JAFA constitutes a separate violation for purposes of assessing penalties, regardless of whether each posting references the same external publication or site. Accordingly, penalties can quickly add up for employers that recruit across multiple platforms or have multiple job postings.

Next Steps

Colorado joins a growing number of states, including California, Connecticut, Delaware, Minnesota, and Pennsylvania, that have enacted age-related protections in the pre-employment screening and hiring process. Employers engaged in business in Colorado should consider undertaking the following steps: (i) audit and update job application and hiring forms, processes, and online platforms to eliminate age-related inquiries on initial employment applications and provide notice of the applicant’s ability to redact age-related information on additional application materials; (ii) train those involved in the hiring process so they understand JAFA’s limitations on age-related inquiries; and (iii) confirm that any third-party recruiters are following JAFA’s new requirements.

JAFA is the just the latest in a series of Colorado laws that impose restrictions on the pre-employment screening and hiring process. When conducting an audit of hiring practices, employers should also review compliance with other recent Colorado laws that: 

• Require inclusion of compensation, benefits, and application process information in the job posting;
• Require separate advance notice of restrictive covenants before acceptance of an offer of employment; 
• Prohibit inquiries related to an applicant’s protected characteristics;
• Prohibit employers from requiring an applicant to submit a photograph of themselves prior to employment;
• Prohibit salary history inquiries;
• Prohibit inquiries into an applicant’s criminal history on an initial employment application or stating a person with a criminal history cannot apply (some exceptions apply); and
• Limit use of consumer credit information for employment purposes unless the information is substantially related to an employee’s current or prospective job.

For assistance with your organization’s compliance obligations, please contact the authors or editors of this alert. They would be happy to help ensure your organization is up-to-date on complying with Colorado law, including the recent spate of laws governing hiring practices. Visit our Labor & Employment Practice page to learn more about our capabilities in this area.

For more information about key developments in Colorado's 2023 legislative session, read Part I, Part II, and Part III of this series.

Authors:

Diane Waters, Partner and Co-Chair of Employment Advice & Counseling Practice

Len Segreti, Partner

Jeffrey McClelland, Partner