Colorado Repeals Duplicative Employment Verification Requirement
It’s not often that HR and hiring managers receive good news when it comes to changes in I-9 and E-Verify practice. As most employers are painfully aware, federal and state requirements relating to I-9 and immigration rules are generally becoming more complex every year – caught up in a web of often-conflicting rules regarding the proper procedure for verifying a new hire’s eligibility to work in the United States.
But every so often, a rule changes. A regulation expires. Or if you’re really lucky, a state legislature listens to the employer community and decides to reduce the paperwork burden.
And that’s exactly what happened in the state of Colorado last week when Governor John Hickenlooper signed House Bill 16-1114 into law, effectively repealing Colorado’s employment verification requirement. Under the new law which goes into effect on August 10, 2016, Colorado employers will no longer need to complete and maintain a separate affirmation form and retain copies of all documents presented during the I-9 process.
For those HR and hiring managers who may be new to the wonderful world of employment eligibility verification, let’s take a quick trip down memory lane and revisit Colorado’s rather unique employment verification law.
The Colorado Employment Verification Law Revisited
Since January 1, 2007, the Colorado employment verification law (§ 8-2-122, C.R.S.) has required Colorado employers to verify and document the work authorization of all newly hired employees. Sounds familiar, right? That’s because the law basically mirrors the federal I-9 requirements with a few minor exceptions. Here’s where it gets interesting. Within 20 days after hiring a new employee, each Colorado employer must also: (1) complete and retain a written or electronic copy of an entirely separate affirmation form and (2) retain copies of the identity and work authorization documents presented by the employee during the I-9 process (e.g., driver’s license, social security card, etc.).
And unlike rules in many other states, the Colorado law actually has some teeth. An employer who is found to be non-compliant with “reckless disregard” for the law can be subject to a fine of not more than $5,000 for the first offense, and not more than $25,000 for the second and any subsequent offense. The Colorado Department of Labor and Employment (CDLE) has been administering the program since the beginning, initiating roughly 30 audits per week. As of last year, the agency had conducted more than 7,000 random audits and fined over 200 different employers.
2016 Changes to the Law
House Bill 16-1114 eliminates these additional verification and retention obligations, beginning August 10, 2016. Needless to say, this is extremely welcome news to Colorado employers, many of whom have long complained about the state’s “redundant form” (as it was often affectionately called). And the state legislature heard them loud and clear, noting in the bill’s preamble that federal law already requires employers to collect and maintain I-9 forms; the employment verification affirmation is unnecessary and redundant due to existing I-9 requirements; the whole process imposes a burden on businesses that must complete the form and store it for the duration of an employee’s tenure at the company; and it’s unlikely to prevent individuals who are ineligible for employment from entering the workforce anyway. The icing on the cake – the legislature also eliminated the rather hefty penalty provision (while noting however that the CDL can still initiate random audits to inspect I-9 forms).
Next Steps for Colorado Employers
In light of these upcoming changes to the Colorado law, employers should carefully review their current policies and practices and create a transition plan for phasing out the “redundant form.” Here are some important considerations to keep in mind:
(1) The new law goes into effect on August 10, 2016. Until that date arrives, you should continue to complete the attestation form and retain document copies for all newly hired Colorado employees according to the program rules.
(2) HR and hiring managers should be instructed well in advance that you will no longer be required to complete the separate attestation form for newly hired Colorado employees beginning on August 10, 2016.
(3) You will need to decide whether to continue retaining copies of all I-9 supporting documents for your Colorado locations (since retention of documents is optional under the federal I-9 rules). While there are numerous advantages to copying and retaining I-9 supporting documents, there are also a few pitfalls for the unwary. It’s always best to speak with your counsel to discuss the pros and cons of document retention.
(4) Although the law does not specifically address what to do with all of those previously completed affirmation forms and document copies, employers may wish to adopt a conservative approach and retain them for the duration of the individual’s employment (just in case the CDL conducts an audit). Once the employee is terminated, the employer may securely dispose of the affirmation form and any document copies that were retained separately pursuant to the Colorado law. But remember that employers must continue to retain the Form I-9 (and any document copies attached to it) for the later of 3 years after the employee was hired or one year after termination.
(5) Lastly, employers looking to streamline their I-9 and E-Verify operations electronically, should carefully research vendors and choose a smart electronic I-9 system which accounts for any unique state requirements and enforces an employer’s own rules regarding document copy retention. Smart electronic I-9 systems effectively automate and standardize employer practices, which in the I-9 world, is no small feat!
John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.