Colorado Employers Relieved from Duplicative I-9 Attestations and Recordkeeping Effective August 10, 2016

Maggio Kattar

Some welcome news in the world of U.S. Employment Eligibility Verification for Colorado employers! Effective August 10, 2016, you no longer have to complete those extra attestations nor are you required to maintain all copies of documents reviewed for the Form I-9 under the Colorado Employment Verification Law!

Since January 1, 2007, Colorado employers have not only had to comply with Federal Employment Eligibility Verification System (Form I-9) Rules, like all U.S. employers, but also, separate Colorado employment verification law (§ 8-2-122, C.R.S.) requirements that included:

  1. a separate attestation affirming that they did in fact comply with Form I-9 rules, and that they specifically did not falsify or alter the records they reviewed and did not knowingly employ and unauthorized worker , and
  2. a requirement to maintain copies of the documents reviewed, and
  3. a requirement to maintain items 1 and 2 above for the duration of an employee’s employment and,
  4. authorization for the State Department of Labor and Employment to audit these records and to fine employers found to be not in compliance.

Almost nine years later, Colorado has finally determined that this process is somewhat duplicative, and therefore, unnecessary.

After signing HB 16-1114 on June 8, 2016, Colorado Governor John Hickenlooper repealed portions of the Colorado Employment Verification Law that required employers to complete a separate attestation and maintain copies of all documents reviewed for completion of the Form I-9 to verify a worker’s identity and work authorization. The State Department of Labor and Employment continues to have authority to audit compliance with the Employment Verification System (Form I-9), but at least employers no longer have to maintain a second set of records for each new employee in order to demonstrate that they complied with requirements to ensure that their employees are authorized to work in the United States. There is currently no guidance, however, on whether employers continue to be required to maintain attestations and documentation copies for employees hired prior to August 10, 2016.

How should Colorado employers prepare for the change to the Colorado Employment Verification Law?

  1. Continue to complete the attestation form and retain copies of documents reviewed for the Form I-9 for all new employees hired prior to August 10, 2016.
  2. Review your existing Form I-9 document copying procedures (as well as requirements, especially if you participate in E-Verify and, especially if you are a government contractor). E-Verify requires that copies be maintained for certain documents anyway. It may be easier to have a consistent policy that states that copies of all documents are maintained vs. trying to ensure that copies of only the documents required by E-Verify are retained. However, while consistent and therefore easier to communicate, this policy can also backfire if copies of more documents than are required to complete the Form I-9 are maintained or copies of the Form I-9 documentation gets mixed with documents required for other HR Processes.

    In addition, there is no guidance yet on whether employers will still be required to maintain attestations and copies of documents for employees hired between January 1, 2007 and August 10, 2016. While the process was deemed duplicative, this doesn’t necessarily mean that the State Department of Labor and Employment will deem retention of these documents as unnecessary. The most conservative approach would be to continue to maintain these records until the end of the employee’s employment, until/unless further guidance to the contrary is provided.

    You should contact your Maggio Kattar attorney to discuss further so that we can discuss all of the pros and cons of various approaches with you.

  3. Train your staff that complete the Form I-9 to ensure that they are aware of the changes effective August 10, 2016 as well as your decisions with regard to ongoing record keeping.