New Guidance Released on Complying with Colorado’s I-9 Employment Verification Law
By now, many employers are familiar with the patchwork of state E-Verify laws which have been steadily consuming the country in the absence of comprehensive immigration reform. No longer can employers simply rely on the federal I-9 requirement (and the accompanying publications, websites and guides) to tell them what to do when a new hire shows up anxiously at their door. Rather, the diligent employer or HR person will need to conduct some E-Verify research, contact counsel, and instruct their I-9 staff on any additional verification tasks. For that reason alone, a growing number of organizations have opted to “voluntarily” participate in the E-Verify program nationwide – if for no other reason than to take the “guesswork” out of the eternal question: to E-Verify or not to E-Verify?
Now imagine this: what if the states went beyond E-Verify requirements and started mandating additional I-9 related obligations to employers doing business in a particular state? Sounds crazy, right? Well, in reality, there are actually a few such laws around the nation, including the subject of today’s blog: the Colorado Employment Verification Law, § 8-2-122, C.R.S.
The Colorado Law in a Nutshell
As of January 1, 2007, the Colorado employment verification law (§ 8-2-122, C.R.S.) requires 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 employer in Colorado must keep a written or electronic copy of an affirmation which indicates that the employer has:
- Examined the legal work status of such newly-hired employee;
- Retained copies of the employee’s identity and employment authorization documents;
- Has not altered or falsified the employee’s identification documents; and
- Has not knowingly hired an unauthorized alien.
Now, without getting into the merits (or appropriateness) of such a law, we clearly have some additional obligations which are above and beyond the federal requirement. If we just look at the affirmations listed above – items 1, 3, and 4 are arguably already required by federal law to a certain degree. But item #2 (retaining copies of ALL documents) is clearly more than what is required under the federal rules. In fact, for many years, attorneys were advising against making document copies unless there was a compelling reason to do so. For a detailed article on the pros and cons of copying I-9 supporting documents, please see our prior guest blog here. And what about the “written or electronic affirmation?” Can I just write it down on the existing I-9 form or perhaps use my onboarding system to record it? Fortunately, a sample affirmation form is available online which gives us some idea of what you should include in this “extra form”. Still, over the years, many questions have arisen as Colorado employers struggled to understand this rather unique law.
Introducing the April 2012 FAQs
As an immigration attorney, I have a love-hate relationship with government FAQs. When I first see them, I always get so excited, like a really nerdy kid in an I-9 candy store, marveling at the new guidance and how it will affect “gray” or unsettled areas of the law. However, as I dig deeper, I’m inevitably faced with contradictions, loopholes and other stomach-churning details. With that rather colorful disclaimer in mind, here is a link to the Colorado Verification FAQs which will hopefully shed some light on those (heart) burning questions. In addition, here are some of the notable items which I found to be especially important:
Q: How long do I have to retain the copies of the affirmation form and the identity and employment authorization document(s)?
A: The employer must retain the affirmation forms and the copies of the identity and employment authorization document(s) for the term of employment of each employee. Blogger’s comment: but note that if you retain copies of documents, you may wish to keep those copies with the I-9 for as long as you need to retain the I-9 (which will be beyond the term of employment). To read about I-9 retention rules, visit I-9 central here.
Q: What can an employer do if they have not complied with the law?
A: If the employer has not properly completed the affirmation form within 20 days of hiring the employee, or the employer has not made and retained copies of employee identity and employment authorization documentation within 20 days of hiring the employee:
- DO NOT complete an affirmation form for the affected employee(s). The employer cannot complete a valid form once the 20 days have elapsed since hire.
- DO NOT backdate or otherwise enter incorrect information onto the form for the affected employee(s). The employer must not enter false or fraudulent information onto the form.
- DO NOT attempt to make and retain copies of employee identity and employment authorization documentation if you did not comply with this requirement within 20 days of hiring the employee. Seeking such documentation after the 20 days have elapsed does not comply with Colorado law, and may also violate separate federal immigration laws.
- DO comply with the employment verification law for all new hires going forward. The employer must: (1) properly complete affirmations, and (2) make and retain copies of employee identity and employment authorization documentation, within 20 days of hire for all employees hired after the discovery of the historical noncompliance. Following the steps above, and engaging in other appropriate compliance actions, may reduce the likelihood of a fine, or may mitigate the value of a fine, depending upon the circumstances. Consult with an attorney for legal advice.
Blogger’s comment: basically, they are saying that if you fail to make the affirmation and retain copies once the 20 day period has lapsed, there’s nothing you should do except to make sure it doesn’t happen again in the future. To a certain degree, this answer makes sense: we all know that back-dating is always a big no-no, and you should always be transparent about mistakes. However, the guidance may be counter-intuitive to some, especially since in the I-9 world, we’re always told that we should complete a missing form when discovered after the fact.
Q: What are the penalties for non-compliance?
A: An employer who, (1) with reckless disregard, fails to submit the documentation required by the law, or who, (2) with reckless disregard, submits false or fraudulent documentation, shall 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. Blogger’s comment: the “reckless disregard” standard is a rather high legal threshold that requires intentional, knowing, or willful conduct on the part of the employer. Practically speaking, this will usually only result in a fine if the organization fails to respond to audit requests or is found to be non-compliant on a re-audit. However, this standard could easily become a moving target, especially considering the amount of outreach and education the state is conducting.
Below is a chart depicting Random Audit Noncompliance Rates in Colorado by year from 2007 through 2010 (according to the Colorado Division of Labor). Although it appears that employers have been getting better at understanding (and complying with) the law, the rate of non-compliance is still rather high –almost half the employers audited in 2010 either did not complete the affirmation forms or did not retain copies of the supporting documents.
As the state continues to revamp its auditing program (and target industries that are known to have non-compliance rates), Colorado employers should strongly consider including Colorado (and other state-specific requirements) in their I-9 and E-Verify policies and procedures documents and consulting with experienced counsel to develop appropriate training programs – which balance the requirements of the law against potential discrimination concerns. Lastly, employers looking to streamline their I-9 and E-Verify operations electronically, should carefully research the vendors and choose a smart electronic I-9 system which automatically includes the appropriate state affirmation and enforces rules on retaining documents. Otherwise, you risk succumbing to the ever-growing I-9 and E-Verify state web…