(1) As used in this
section:
(a) Applicant means any person applying to a private employment agency
in order to secure employment with any person, firm, association, or corporation
other than the private employment agency.
(b) Employment means every character of service rendered or to be
rendered for wages, salary, commission, or other form of remuneration.
(b.5) Fee-paid position means a position of employment which is available
to an applicant where no fee or cost accrues to the applicant as a condition of
obtaining such position.
(c) (I) Private employment agency means any nongovernmental person,
firm, association, or corporation which secures or attempts to secure employment,
arranges an interview between an applicant and a specific employer other than
itself, or, by any form of advertising or representation, holds itself out to a
prospective applicant as able to secure employment for the applicant with any
person, firm, association, or corporation other than itself, or engages in employment
counseling and in connection therewith supplies or represents that it is able to
supply employers or available jobs, where an applicant may become liable for the
payment of a fee, either directly or indirectly.
(II) Private employment agency also means any nongovernmental person,
firm, association, or corporation which provides a list of potential employers or
available jobs in a publication, if the primary purpose of the publication, as
represented by the provider, is to enable applicants to find employment or to list
available jobs and if the applicant is charged more than twenty dollars within any
period of time of thirty days or less for access to the publication or revisions or
updates thereof, unless the listings of all jobs in the publication are initiated by
employers rather than the provider.
(2) Any fee paid by an applicant to a private employment agency shall be by
written contractual agreement which includes specific provisions for refunds and
extended payment options. The exclusion of said options from the contractual
agreement shall be explicitly stated in said agreement.
(3) No fee shall be charged by a private employment agency until an
applicant is placed in employment.
(4) In the event employment terminates for any reason within one hundred
calendar days, an applicant shall not be required to pay a fee to a private
employment agency in excess of one percent of the total fee for each calendar day
elapsed between the beginning and termination of employment. For purposes of
this subsection (4), the amount of the total fee shall be based on the actual gross
income earned, annualized in accordance with the contractual fee schedule.
(5) In the event employment terminates for any reason within one hundred
calendar days, a private employment agency shall refund any portion of a fee paid
by an applicant in excess of the limits specified in subsection (4) of this section.
Such a refund shall be made in full within seven calendar days of said agency's
receipt of written notification of the termination of employment; except that, if it
has not been determined within that period of time that the instrument used to pay
the fee is backed by sufficient funds, the refund is due upon such determination. If
a refund is not made when due, the private employment agency is liable to the
applicant for the refund due plus an additional sum equal to the amount of the
refund.
(5.5) It shall be unlawful for any private employment agency knowingly to do
or cause to be done any of the following:
(a) Send an applicant to any fictitious job or position or make any false
representation concerning the availability of employment;
(b) Send an applicant to any place where a strike or lockout exists or is
impending without notifying the applicant of the circumstances;
(c) Conspire or arrange with any employer to secure the discharge of an
employee or give or receive any gratuity or divide or share with an employer any
fee, charge, or remuneration received from any applicant for employment;
(d) Circulate or publish, by advertisement or otherwise, any false statements
or representations to persons seeking employment or to employers seeking
employees;
(e) Fail to refund fees to an applicant where such refund is due pursuant to
subsection (5) of this section;
(f) Advertise or represent the availability of fee-paid positions where no cost
accrues to the applicant if hired in such a manner as to confuse such position with
other available positions which are not available on a fee-paid basis;
(g) Advertise or represent that an available position is available on a free or
no fee basis or otherwise indicate that no charge or cost accrues to anyone when in
fact the employer is obligated to pay a fee contingent upon the acceptance of
employment of the applicant;
(h) Advertise for any position, including personnel for its own staff, without
identifying in the advertisement that it is a private employment agency.
(6) A private employment agency or any employee of such agency commits a
class 2 misdemeanor if said agency or employee knowingly violates any provision of
this section.
(7) A private employment agency which has been convicted of a
misdemeanor pursuant to this article, or any person connected therewith pursuant
to paragraph (c) of subsection (1) of this section prior to conducting business in this
state after such conviction, regardless of how classified as person, firm,
association, or corporation, shall file with the department of labor and employment
a cash or corporate surety bond in the sum of twenty thousand dollars. Such bond
shall be executed by the private employment agency as principal and by a surety
company authorized to do business in this state. Said private employment agency
shall maintain such bond in effect as long as it conducts business in this state. Any
person who suffers loss or damage as the result of a violation of this article,
including any person who is owed a refund or any part thereof pursuant to
subsections (4) and (5) of this section, may recover against the bond to the extent
of the loss or damage suffered. A surety on any bond filed under the provisions of
this section shall be released therefrom after such surety serves written notice
thereof to the department of labor and employment at least sixty days prior to such
release. Said release shall not discharge or otherwise affect any claim for loss or
damage which occurred while said bond was in effect or which occurred under any
contract executed during any period of time when said bond was in effect, except
when another bond is filed in a like amount and provides indemnification for any
such loss. The sole responsibilities of the department of labor and employment
under this subsection (7) shall be to serve as a repository of bonds filed pursuant to
this subsection (7) and to notify the district attorney in the county in which a private
employment agency is located when the department of labor and employment
receives written notice from a surety seeking release from a bond that has been
filed with the department of labor and employment by said private employment
agency pursuant to this subsection (7). A private employment agency that violates
the provisions of this section with regard to any three or more different applicants
in any one-year period shall be deemed a class 1 public nuisance and shall be
subject to the provisions of part 3 of article 13 of title 16, C.R.S. Any surety bond
filed by such agency shall be forfeited and the proceeds distributed as provided in
section 16-13-311, C.R.S.