Colorado's Employment Verification Law Repealed: Now What?
On August 10, 2016, Colorado employers will no longer have to complete the state's affirmation form to verify that new hires can work in the United States. Public and private employers will also no longer need to collect and retain supporting documents relating to an employee's work authorization. The state eliminated these requirements with the passage and Gov. John Hickenlooper's signature of House Bill 16-1114. The change in Colorado's employment verification law will result in simpler hiring procedures and a lack of exposure to fines between $5,000 and $25,000.
Right now, focus on completing the state's affirmation form and retaining work authorization documents for new hires until mid-August. You can also think about phasing out the completion of the affirmation form and collection of related documents during the onboarding process.
What does Colorado's verification law require?
The Colorado Department of Labor requires private and public employers to verify that all newly hired employees are authorized to work in the United States. The procedures are:
- Complete the state's electric or written affirmation form within 20 calendar days of hire
- Retain this form for the individual's term of employment
- Produce the form upon request to the Colorado Department of Labor
- Obtain and keep a written or electronic copy of supporting documents relating to the employee's work authorization for the individual's term of employment. You may also keep copies of employee IDs.
Until the law is repealed in mid-August, make sure that you use the most current affirmation form. This is called the Division Mandatory Affirmation Form and has a revision date of August 1, 2014.
What should Colorado employers do now?
This is an excellent time to consult an attorney about the retention of employee IDs and work authorization documents. The law is silent on this area. You should hear the advice of counsel to learn the pros and cons on keeping such documents for currently active employees that your organization hired between January 1, 2007, and August 10, 2016. Retaining these documents may be useful in case the state decides to conduct a random audit. Make sure you retain any documents necessary to show that you are compliant with I-9 requirements.
What are the top takeaways?
The repeal of Colorado's employment verification law does not eliminate the requirement of Colorado employers to comply with federal I-9 requirements. Make sure you continue to complete and retain copies of the I-9 form.
The reason that the employee verification law was repealed was that it resulted in far more paperwork for employers. The Colorado General Assembly declared the requirement to impose an unreasonable burden on employers. The GA also did not view the form as preventing individuals ineligible for employment from entering the workforce. Even though the state no longer sees it as useful for employers to continue to be obligated under the law, it may choose to review which companies were compliant with the law in the past.
Typically, you do not need to keep an I-9 for an individual who has worked as an independent contractor. If you have had trouble ascertaining who is or has worked as an employee and who has worked as an independent contractor, talk to your attorney about the need to keep those individuals' records. The matter is not always clear because different Colorado and federal laws contain different legal tests and criteria.