§ 8-81-101 — Penalties

Colorado § 8-81-101

• Jurisdiction: Colorado
• Title 08: Labor and
• Art.: Penalties and Enforcement

Text

(1) (a) Any person who makes false statement or
representation of a material fact knowing it to be false, or knowingly fails to
disclose a material fact, with intent to defraud by obtaining or increasing any
benefit under articles 70 to 82 of this title 8 or under an employment security law
of any other state, of the federal government, or of a foreign government, either for
himself, herself, or for any other person commits a class 2 misdemeanor.

(b) Any person who, in the opinion of the division, has received a benefit to
which he was not entitled by reason of his false representation or failure to disclose
a material fact with intent to obtain or increase any benefit for himself or any other
person and his trial by court is prevented by the inability of the court to establish its
jurisdiction over said person shall be ineligible to receive any benefits under articles
70 to 82 of this title from the date of the discovery of the said act until such time as
he makes himself available to the court for trial.

(c) If any employer makes or causes to be made a false statement as to the
reason for a claimant's separation from employment or makes or causes to be made
a false offer of work to a claimant, which statement or offer shall result in a delay in
the payment of benefits to any such claimant, such employer shall be penalized by
having his account charged with one and one-half times the amount of benefits due
during the period of the delay and with one hundred percent of all other benefit
payments paid to the claimant thereafter during his current benefit year, any other
provisions of articles 70 to 82 of this title to the contrary notwithstanding, and the
claimant shall be compensated by being paid one and one-half times his weekly
benefit amount for the period of the delay. The period of delay as used in this
section shall be determined by the division, and such determination shall be binding
upon all parties affected and shall not be subject to review. The penalty imposed by
this paragraph (c) shall be in addition to and not in lieu of any other penalty, civil or
criminal, provided in articles 70 to 82 of this title.

(2) Any employing unit, or any officer or agent of an employing unit, or any
other person who makes a false statement or representation knowing it to be false
or who knowingly fails to disclose a material fact either to cause an individual to
receive benefits to which such individual is otherwise not entitled or to defraud an
individual by preventing or reducing the payment of benefits to which such
individual would otherwise be entitled, or to avoid becoming or remaining a subject
employer, or to avoid or reduce any premium, surcharge, or other payment required
from an employing unit under articles 70 to 82 of this title 8 or under the
employment security law of any other state, the federal government, or a foreign
government or any such employing unit, officer or agent, or other person who
willfully fails or refuses to pay any such premiums or surcharges or make any other
payment, or to furnish any reports required under section 8-72-107, or to produce or
permit the inspection or copying of records as required under section 8-72-107
commits a class 2 misdemeanor. Each false statement or representation or failure
to disclose a material fact and each day such failure or refusal continues shall
constitute a separate offense.

(3) Any person who willfully violates any provision of articles 70 to 82 of this
title 8 or any rule or regulation thereunder, the violation of which is made unlawful
or the observance of which is required under the terms of articles 70 to 82 of this
title 8 and for which a penalty is neither prescribed in this article 81 nor provided by
any other applicable statute commits a petty offense.

(4) (a) (I) Any person who has received any sum as benefits under articles 70
to 82 of this title 8 to which the person was not entitled may be required to repay
such amount to the division for the fund. Such sum shall be collected in the manner
provided in section 8-79-102; except that the division may waive the repayment of
an overpayment if the division determines such repayment to be inequitable.
Repayment is inequitable when:

(A) The person who received the overpayment is receiving or has received
any of the following public assistance benefits in the twelve months prior to the
division providing notice to the person of the overpayment: Federal supplemental
nutrition assistance program benefits, temporary assistance to needy families
benefits, federal supplemental security income, social security disability benefits
received after any unemployment insurance benefits were paid, means-tested legal
aid services, benefits from the low-income energy assistance program created in
section 26-2-122.5, federal or state earned income tax credits, free or reduced-price school lunch benefits, public or subsidized housing benefits, medicaid
benefits under the medical assistance program, articles 4 to 6 of title 25.5, or
medicare benefits;

(B) The person's household income, exclusive of public assistance benefits,
during the three months prior to the overpayment determination, was at or below
four times the federal poverty guidelines determined by the United States
department of health and human services under the authority of 42 U.S.C. sec. 9902
(2);

(C) The person needs much of the person's current income to meet ordinary
and necessary living expenses and liabilities, including housing, food, school loans,
child care, outstanding loan and credit card balances, transportation, and medical
expenses;

(D) Due to the notice that the benefit payment would be made or because of
the incorrect payment the person either relinquished a valuable right or changed
positions for the worse, including if: The person incurred a financial obligation, such
as a lease, based on benefit payments that the person received; the person relied
on the benefit payment and took out a loan, in which the person has already
invested the benefit payment received and repayment of the overpayment will
cause the person to default on the loan, resulting in criminal or civil actions; or the
person declined other financial assistance because the person received benefits
under articles 70 to 82 of this title 8 and thought the person would not need
additional financial assistance from other sources;

(E) The overpayment was caused, at least in part, by an error by the division
or by the person's reliance on the division's publicized information or guidance that
was later determined to be erroneous; or

(F) Any other reason the division finds sufficient to establish that repayment
would be inequitable.

(I.5) The division shall, to the extent possible, review and waive the
repayment of an overpayment at the time the overpayment is determined if the
division has sufficient information to determine that the repayment would be
inequitable. If the division does not have sufficient information in its possession to
make such a determination, the division shall notify the person of the right to
request a waiver of the overpayment and the process for such a request. The
division shall accept copies of relevant bills, receipts, award letters, bank
statements, and all other reasonable forms of proof that repayment would be
inequitable. If a person cannot provide documentation, the division may accept as
sufficient proof a written statement signed by the person seeking to waive the
overpayment attesting to the facts at issue.

(II) If any person receives an overpayment because of the person's false
representation or willful failure to disclose a material fact, inequitability must not
be a consideration in any civil, administrative, or criminal action, and the person
shall pay to the division the total amount of the overpayment plus a sixty-five
percent monetary penalty. Of the monetary penalty, the division shall pay twenty-three percent into the unemployment compensation fund, created in section 8-77-101, and the remainder into the unemployment revenue fund, created in section 8-77-106. In addition, the person may be denied benefits, when otherwise eligible, for
a four-week period for each one-week period in which the person filed claims for or
received benefits to which the person was not entitled. The provisions of section 13-80-108 (9) shall be used for determining when an offense is committed for the
purposes of this subsection (4)(a)(II). For purposes of this subsection (4)(a)(II), a
person has not received an overpayment because of the person's false
representation or willful failure to disclose a material fact if: The person provided
all information requested by the division correctly, but the division failed to take
appropriate action with that information or took delayed action when determining
or redetermining eligibility; the person provided incorrect information due to
conflicting, changing, or confusing information or instructions from the division; the
person was unable to reach the division despite the person's best efforts to inquire
or clarify what information the person needed to provide, or experienced other
similar barriers, including that it was the person's first time applying for or receiving
unemployment benefits, or the person experienced language, education, or literacy
barriers; or the person's employer provided the person with incorrect or untimely
information or did not timely report facts.

(III) All investigative costs awarded by the court and collected by the division
in connection with the conviction, in any criminal action, of a person who has
received any overpayment because of his or her false representation or willful
failure to disclose a material fact shall be paid into the unemployment revenue
fund.

(IV) The penalties associated with an overpayment pursuant to subparagraph
(II) of this paragraph (a) shall be made known to individuals upon filing an
unemployment claim as defined in section 8-70-112.

(b) Pursuant to rules and regulations promulgated by the director of the
division, the division may write off all or a part of the amount of any overpayment
which it finds to be uncollectible or the recovery of which it finds to be
administratively impracticable. Amounts which remain uncollected for more than
five years, or seven years for overpayments due to false representation or willful
failure to disclose a material fact, may be written off as uncollectible.

(c) Any person aggrieved by a determination of the division made under this
subsection (4) may appeal that determination and obtain a hearing before a hearing
officer with the right to further appeal as provided by article 74 of this title. The
initial appeal must be received within twenty calendar days after the date of
notification of such determination by the division; otherwise, the determination shall
be final.

(d) Upon final determination pursuant to paragraph (c) of this subsection (4),
repayment of an overpayment that is a result of the individual's false
representation or willful failure to disclose a material fact pursuant to
subparagraph (II) of paragraph (a) of this subsection (4) shall be made within thirty
days.

(e) The division shall not attempt to recover an overpayment until there is a
final determination that the debt is in fact owed and all appeals are exhausted. The
division shall not attempt to recover an overpayment when there is a pending
waiver application until there is a final determination that the person is not eligible
for a waiver and all appeals are exhausted.

Legislative History

Source: L. 36, 3rd Ex. Sess.: p. 47, � 16. CSA: C. 167A, � 16. L. 39: p. 581, � 12. L. 41: p. 800, � 16. L. 51: p. 821, � 14. CRS 53: � 82-11-1. L. 63: p. 682, � 10. C.R.S. 1963: � 82-11-1. L. 65: p. 847, � 10. L. 67: p. 73, �� 1, 2. L. 69: p. 671, � 10. L. 77: (1)(a) amended, p. 478, � 3, effective July 1; (4)(b) R&RE, p. 478, � 4, effective July 1; (4)(c) added, p. 479, � 5, effective July 1. L. 79: (4)(a) and (4)(c) amended, p. 355, � 24, effective September 30. L. 81: (2) and (4)(a)(I) amended, p. 507, � 28, effective July 1; (4)(a)(I) and (4)(b) amended, p. 487, � 15, effective July 1. L. 83: (4)(a) amended, p. 433, � 13, effective June 3; (4)(d) added, p. 438, � 1, effective June 15. L. 84: (2) amended and (4) R&RE, pp. 319, 320, �� 12, 13, effective July 1. L. 86: (4)(a)(II) amended, p. 703, � 10, effective July 1; (4)(b) and (4)(c) amended, p. 496, � 108, effective July 1. L. 86, 2nd Ex. Sess.: (4)(c) amended, p. 56, � 4, effective August 15. L. 90: (4)(a)(II) amended, p. 608, � 6, effective April 16. L. 92: (4)(b) amended, p. 1796, � 9, effective April 10. L. 2000: (4)(a)(II) amended and (4)(a)(III) added, p. 815, � 4, effective July 1. L. 2002: (4)(c) amended, p. 340, � 14, effective April 19. L. 2007: (4)(c) amended, p. 805, � 8, effective August 3. L. 2009: (2) amended, (HB 09-1363), ch. 363, p. 1909, � 35, effective July 1. L. 2011: (4)(a)(IV) and (4)(d) added, (HB 11-1288), ch. 212, p. 932, �� 16, 17, effective July 1. L. 2013: (4)(a)(II) amended, (HB 13-1124), ch. 97, p. 312, � 2, effective August 7. L. 2021: (1)(a), (2), and (3) amended, (SB 21-271), ch. 462, p. 3144, � 99, effective March 1, 2022. L. 2022: (4)(a)(I) and (4)(a)(II) amended and (4)(a)(I.5) and (4)(e) added, (SB 22-234), ch. 224, p. 1621, � 11, effective May 25.