The Colorado Department of Labor and Employment (CDLE) recently updated the form that employers must use to comply with the Colorado Employment Verification Law, C.R.S. § 8-2-122. The new Affirmation of Legal Work Status form must be used for all Colorado employees hired on or after October 1, 2014.
Form Must Be Completed Within 20 Calendar Days
The updated form does not differ greatly from previous versions of the Colorado employment verification form. It does, however, clarify that the form must be completed within 20 calendar days after each new employee is hired. (The prior form specified that it must be completed within 20 days, but did not specify whether it was calendar days or business days.) The new form is available on the CDLE’s website in a fillable PDF format at https://www.colorado.gov/pacific/sites/default/files/EVL-MandatoryAffirmationForm9-1-14.pdf. The revision date on the new form is 09/01/14 with an expiration date of 10/01/17.
Complying with Colorado’s Employment Verification Law
Colorado’s Employment Verification Law has been in effect for over seven years, yet many employers remain confused because it differs from federal employment verification requirements. Key details for employers to know in order to comply with Colorado’s law include:
- All private and public employers with employees in Colorado must comply with the Employment Verification Law;
- Use of the Affirmation of Legal Work Status form provided by the CDLE is mandatory;
- Electronic copies of the affirmation form are acceptable;
- Employers must make and keep copies of the identity and employment authorization documents used to complete federal Form I-9 for each newly hired employee (Note: this differs from federal law, which does not require employers to retain copies of the identity and authorization documents);
- Employers may complete the form before the person begins work as long as he/she has been offered and has accepted the job; it may not, however, be used as a pre-screening tool;
- Employers must retain copies of the affirmation forms and supporting documents for as long as the employee is employed;
- Employers do not need to submit the forms and documents to the CDLE unless specifically requested; and
- Compliance with federal Form I-9 or E-Verify requirements is not a substitute for complying with Colorado’s Employment Verification Law.
The new affirmation form is prefaced with two pages of instructions that offer employers an overview of the Colorado Employment Verification Law as well as instructions regarding how to complete the form. In addition, the CDLE has updated its Fact Sheet and provided Frequently Asked Questions regarding the Employment Verification Law to help guide employers through the process. These documents are available on the CDLE website on its Employment Verification Law page.
Penalties for Non-Compliance
Fines for failing to complete and retain the required Colorado affirmation forms and copies of new hire identification and authorization documents can mount up quickly. An employer who, with reckless disregard for the law, fails to comply may be subject to a $5,000 fine for the first offense and up to $25,000 for any subsequent offenses. The CDLE conducts random audits of Colorado employers and will audit employers upon receipt of a complaint. Employers should keep their verification documents organized and readily available in case the CDLE requests to examine verification records to determine compliance.
If in Violation, Don’t Correct—Comply Going Forward
The CDLE advises that if an employer has not properly completed the affirmation form within 20 calendar days of hiring a new employee or has failed to keep copies of the identification and authorization documents, the employer should not complete the form after the 20-day period has expired. The CDLE states that backdating or entering false information on the form could result in further fines, depending on the circumstances. Instead, employers should comply with the Employment Verification Law going forward and properly complete the mandatory forms and retain the necessary documents for all future new hires.