Handle with Care: Colorado’s New Restrictions on Employee Identification Documents

House Bill 26-1283, codified at C.R.S. § 8-2-124.5 and titled "Protections Regarding Seizures of Identification Documents," establishes new, stringent requirements for Colorado employers in connection with employment eligibility verification. Most pertinent to Colorado businesses, the law prohibits employers from demanding, confiscating, retaining, or otherwise requiring applicants or employees to surrender government-issued identification documents, and imposes related notice, acknowledgment, and recordkeeping obligations on Colorado employers. The statute does not, however, prohibit employers from engaging in lawful employment eligibility verification practices. Employers may still request and temporarily retain an individual’s government-issued identification document for the limited purpose of verifying employment eligibility, and may retain copies of such documents in their records as otherwise permitted by law.

Notice Requirements and Translation Considerations

The law imposes certain notice requirements that must be provided to applicants and employees.¹ Employers must provide written notice informing applicants and employees that the employer (or its agent) may not demand, confiscate, retain, or otherwise require an individual to surrender a government-issued identification card. The notice must be provided in English and, if the employer knows that an individual’s primary language is not English, in that individual’s primary language. The statute does not require the notice to fit a specific format, and Colorado has not yet published a model notice.

Given the statute’s language-access requirements, it may be prudent for employers to provide the notice in English and in any other languages commonly spoken by their workforce and applicant pool, rather than waiting until a particular language need arises. A proactive approach may help streamline the hiring and onboarding process, promote consistent compliance, and reduce the risk that an applicant or employee will not receive the required notice in a language they understand. 

In addition, because the statute requires the notice be provided in an individual’s primary language whenever an employer knows that the individual’s primary language is not English, employers should consider establishing a process for identifying an applicant’s or employee’s primary language early in the hiring process. Employers should also periodically evaluate whether additional translations are needed as workforce demographics change. Maintaining a process for updating available translations as new language needs arise will help ensure ongoing compliance with the statute’s notice requirements.

Acknowledgment Requirement

The law also requires employers to obtain an acknowledgment from each applicant or employee confirming receipt of the required notice.² As a result, employers should consider implementing a formal process to ensure the notice is provided and that an affirmative acknowledgment is obtained before or at the time employment eligibility verification occurs. This may require updates to electronic application platforms, onboarding workflows, and I-9 verification systems to incorporate a mandatory acknowledgment step. As a recommended practice, individuals should not be permitted to proceed through the relevant stage of the hiring or onboarding process until they have confirmed receipt of the notice.

Employers should also consider how the acknowledgment will be documented and maintained. For example, electronic systems may be configured to capture a dated electronic acknowledgment, while paper-based processes may require a signed acknowledgment form. Regardless of the method used, the acknowledgment should be retained in a manner that clearly identifies the notice provided, the date of receipt, and the individual who provided the acknowledgment. Maintaining a reliable record of compliance will be particularly important if questions later arise regarding the employer’s employment eligibility verification practices or compliance with the statute’s notice requirements.

In addition, because the statute requires the notice to be provided in an individual’s primary language when the employer knows that the individual’s primary language is not English, employers should ensure that acknowledgment procedures are integrated with any language-access protocols adopted for compliance purposes.

Record-Retention Requirements

The statute further requires employers to retain records of both the notice provided and the individual’s acknowledgment in the employee’s personnel or employment records.³ Although the law expressly requires retention of these records, it does not specify a retention period or otherwise indicate how long employers must maintain them.

Until additional guidance is issued or the statute is interpreted by a court or enforcement agency, employers should consider retaining these records for at least as long as they retain other onboarding and employment eligibility verification documents, and ideally for the duration of employment plus any applicable post-employment retention period required by company policy or other legal obligations. Employers should also ensure that their recordkeeping systems are capable of preserving both the notice and the related acknowledgment in a manner that allows the documents to be readily retrieved if needed. 

Enforcement and Potential Risks

Employers that unlawfully demand, confiscate, or retain an applicant’s or employee’s government-issued identification document may face criminal liability, civil actions for damages, and court orders requiring the immediate return of the document.⁴ In addition, the law expands Colorado’s bias-motivated crime statute to criminalize the unlawful possession or retention of an individual’s identification document, or the provision or threatened provision of such a document to federal immigration authorities, when undertaken with the intent to intimidate or harass a person because of a protected characteristic, including race, color, religion, ancestry, national origin, disability, sexual orientation, or transgender identity.⁵ Depending on the circumstances, violations may be prosecuted as misdemeanors or felonies.

These provisions underscore the legislature’s concern that identification documents can be used as a tool of intimidation or coercion, particularly against individuals perceived as vulnerable because of their immigration status or other protected traits. Although employers may continue to review identification documents for employment eligibility verification purposes and retain copies where otherwise permitted by law, they should ensure that managers, human resources personnel, recruiters, and third-party agents understand the limited circumstances under which identification documents may be requested, reviewed, copied, or temporarily retained.

Although the statute does not expressly provide penalties for failing to furnish the required notice, obtaining an acknowledgment, or retaining the related records, noncompliance still presents potential legal risk. Employers should treat the statute’s notice, acknowledgment, and record-retention requirements as mandatory compliance obligations and incorporate them into their onboarding and employment eligibility verification procedures.