Fraudulent Practice By A Private Employment Agency in Colorado

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Statute for 18 – 5 – 307 – Fraudulent Practice By A Private Employment Agency

StatuteHere is the charge you are facing:

18-5-307. Fee paid to private employment agencies

(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 misdemeanor if said agency or employee knowingly violates any provision of this section. An agency found guilty of such a crime shall be subject to a fine of not more than one thousand dollars per conviction, and any employee of such agency found directly responsible for committing acts in violation of this section shall be subject to a fine of not more than one thousand dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.

(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.

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Fraudulent Practice By A Private Employment Agency

Penalties

The charge of Fraudulent Practice By A Private Employment Agency, is categorized as a:

A defendant convicted under this section may be
required to
post a bond, and considered a public nuisance.

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a Colorado Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Colorado Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Fraudulent Practice By A Private Employment Agency below. These will be adapted by your Colorado Attorney for your case.

The elements of the crime of fraudulent practice by a private employment agency are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. was [a private employment agency] [an employee of a private employment agency], and 4. knowingly [received a fee from an applicant where no written contractual agreement which included specific provisions for refunds [and extended payment options] [and specific exclusions of payment options] existed] -or- [charged a fee before an applicant was placed in employment] -or- [required a fee in excess of one percent of the total fee for each calendar day elapsed between the beginning and termination of employment, where employment was terminated within one hundred days] -or[ failed to refund after written notification to the private employment agency of the termination of an applicant’s employment that portion of the fee paid by an applicant in excess of one percent of the total fee for each calendar day elapsed between the beginning and termination of employment where employment was terminated within one hundred days] -or- [sent an applicant to any fictitious job or position] -or- [made any false representation concerning the availability of employment] -or- [sent an applicant to any place where a strike or lockout existed or was impending without notifying the applicant of the circumstances] -or- [conspired or arranged with any employer to secure the discharge of an employee] -or- [gave or received any gratuity or divide or share with an employer any fee, charge, or remuneration received from any applicant for employment] -or- [circulated or published, by advertisement or otherwise, any false statements or representations to [persons seeking employment] [employers seeking employees] -or- [a. failed, within seven calendar days of the agency’s receipt of written notification of the termination of employment, or upon the determination that the instrument used to pay the fee was backed by sufficient funds, whichever last occurred, b. to refund fees to an applicant in excess of one percent of the total fee for each calendar day elapsed between the beginning and termination of employment, c. where the applicant’s employment terminated for any reason within one hundred calendar days] -or- [advertised or represented that an available position was available on a free or no-fee basis where no cost would accrue to the applicant, if hired in such a manner as to confuse such position with other available positions which were not available on a fee-paid basis] -or- [advertised or represented that an available position was available on a free or no-fee basis or otherwise indicated that no charge or cost would accrue to anyone when in fact the employer was obligated to pay a fee contingent upon the acceptance of employment of the applicant] -or- [advertised for any position, including personnel for its own staff, without identifying in the advertisement that it is a private employment agency] 5. [without the affirmative defense in instruction number ____________]. After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of fraudulent practice by a private employment agency. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of fraudulent practice by a private employment agency. NOTES ON USE Delete inapplicable bracketed material. When this instruction is used, the appropriate definitions of “applicant,” “employment,” “total fee,” “private employment agency,” and “knowingly” must be given.

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your Colorado Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Fraudulent Practice By A Private Employment Agency.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca