For several years, Colorado employers have been required to declare their compliance with federal I-9 requirements by completing an extra affirmation document and retain copies of verification documentation (federal law does not require employers to retain copies of the underlying verification documentation) or face sanctions from the Colorado Division of Labor. This burden is about to disappear. On June 8, 2016, Colorado Governor John Hickenlooper signed House Bill 16-1114 repealing these attestation requirements and alleviating the need for Colorado employers to duplicate existing federal employee verification recordkeeping. The law will become effective on August 10, 2016.

What Are the Current Burdens on Employers? 

Colorado law has required an employer to affirm, within 20 days after hiring a new employee, that it has taken the following actions:

  1. It examined the legal work status of the newly hired employee.
  2. It retained copies of documents required for federal I-9 compliance.
  3. It didn’t alter or falsify the employee’s identification documentation.
  4. It didn’t knowingly hire an unauthorized alien.

The employer is then required to retain a written or electronic attestation for the entire duration of the relevant employee’s employment. If an employer fails to adhere to these requirements with reckless disregard, it is subject to a fine of up to $5,000 for the first offense and $25,000 for subsequent offenses. Due to Colorado House Bill 16-1114, employers will no longer have the obligation to complete and store the attestation form or retain copies of verification documentation, such as driver’s licenses, social security cards, or passports (although employers will continue to have a variety of good reasons to retain such copies under federal law).   

Public Contractors Beware

Employers engaged in Colorado public contracts have had the option to participate in either the federal E-Verify program or the Colorado state attestation program to comply with employment verification requirements in their contracts. This option, though, is presented in a separate provision of the Colorado Revised Statutes at section 8-17.5-102 (5). House Bill 16-1114 only repeals the state attestation program that applies generally to Colorado employers in Colorado Revised Statutes section 8-2-122. Thus, it appears that state contractors will still be able to elect to utilize the state attestation program to comply with employment verification requirements for Colorado public contracts. But this conclusion is uncertain, which places public contractors in a concerning position if they have not already enrolled in E-Verify.

What Colorado Requirements Remain for Employers?

While employers are no longer required to complete the affirmation form, the Colorado legislature did not extinguish the Division of Labor’s authority to request a Colorado employer’s federal I-9 documentation or perform random audits. It will be interesting if the Division of Labor actively tries to invoke this power without the separate Colorado attestation requirement because its investigation would duplicate the existing enforcement duties of Immigration and Customs Enforcement within the U.S. Department of Homeland Security. 

Impact on Employers

Through House Bill 16-1114, Colorado employers will receive much needed administrative relief as they no longer will need to complete a separate state employment verification attestation. Unfortunately, it is unclear how this change in Colorado law will affect a Colorado public contractor’s ability to choose whether to use the federal E-Verify program or the state attestation program to comply with public contract requirements. Currently, it appears that the Colorado legislature is allowing Colorado contractors to continue to choose between these two options. But that choice could evaporate as Colorado agencies interpret this new framework of employment verification recordkeeping in Colorado.

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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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