Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Effective August 10, 2016, Colorado has eliminated the requirement that employers collect and retain state employment verification forms for each new hire. The Colorado General Assembly concluded that the state collection requirement unnecessarily burdened employers because it was redundant of federal requirements for the Form I-9 and did nothing additional to ensure legal work status of employees in the state.
HB 16-1114 repeals the portions of Colorado Revised Statutes § 8-2-122 that required an employer to collect Affirmation of Legal Work Status Forms from each employee within 20 days of hire and provided for penalties for non-compliance.1 Under the prior statute, Colorado employers were required to maintain copies of both the Affirmation Forms and the identity and employment eligibility documents employees presented for completion of their Form I-9s. Now, employers are no longer required to complete or maintain the Colorado forms or employees’ identity and eligibility documents.
Of course, employers must still comply with the separate requirement to complete the federal Form I-9 within three business days of hiring an employee. See 8 U.S.C. § 1324a; 8 C.F.R. § 274a.2(b)(2). Moreover, the law continues to permit Colorado state officials to conduct random audits of employers’ compliance with the federal I-9 requirements. HB 16-1114, §§ (3)-(4).
But what to do with the stacks of forms signed by employees before August 10, 2016?
Although the recently enacted legislation is silent on this question, employers should retain the previously obtained Colorado affirmation forms and identity and employment eligibility documents until an employee’s separation from employment—as the law previously required. This practice will allow an employer to demonstrate compliance with the law in effect at the time the employee was hired. Please note, the state law does not affect or amend the existing federally mandated retention rules.
Employers should be mindful that they are still required to maintain completed Form I-9s for their employees for three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later. See 8 C.F.R. § 274a.2(b)(2)(i)(A). Employers also may, but are not required to, maintain copies of the identity and employment documents employees present for the Form I-9. Whatever the policy, it should be applied uniformly. The risks and benefits of maintaining those documents may vary from organization to organization, so employers should consult legal counsel regarding the practice that is the best fit for their company.
1 A sample of the prior form can be found on the State of Colorado’s website: https://www.colorado.gov/pacific/sites/default/files/EVL-MandatoryAffirmationForm9-1-14.pdf.