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Colorado Employment Law

The State of Colorado recently enacted new legislation designed to ensure compliance with the Immigration Reform and Control Act ("IRCA") that prohibits the employment of undocumented aliens. Colorado's new law is more onerous than the federal law by requiring enhanced employment verification procedures for organizations that employ in the State of Colorado.

First, Colorado Revised Statutes § 8-2-122 imposes heightened employment eligibility verification requirements on employers who hire new employees on our after January 1, 2007. Specifically, within 20 days after hiring a new employee, employers in Colorado must affirm that:

(1) they have examined the employee's legal work status;

(2) they have retained file copies of the identification documents reviewed to comply with the federal Immigration Reform and Control Act ("IRCA") (documents reviewed for completion of the I-9);

(3) they have not altered or falsified the employee's identification documents; and

(4) they have not knowingly hired an unauthorized alien.

The Colorado law differs from federal record-keeping requirements. First, the federal law does not require that employers keep copies of documents reviewed to complete the I-9 Forms. Second, the federal law requires that employers retain the I-9 for three years after the date of hire or one year after termination, whichever is later. The Colorado law requires employers to keep the I-9 Form and copies of the Form I-9 and supporting documentation for the duration of the employment relationship, which may be longer or shorter than the retention period required under IRCA.

Employers may want to consider retaining two sets of files relating to employee immigration status checks. The first set, which must be kept for the duration of the employment relationship to comply with the Colorado statute, will include a copy of the Form I-9, copies of the documents in support of the I-9, and an affirmation of compliance (see link). The second set of documents should be maintained to comply with IRCA. It is well-established that these documents should contain the Form I-9 and must be retained for three years, or one year after termination, whichever is later.

The second part of the Colorado Revised Statutes § 8-17.5-101, prohibits any Colorado state agency or political subdivision from entering into or renewing public contracts with any contractor who knowingly employs or contracts with an "illegal alien" or who contracts with subcontractors who knowingly employ or contract with an "illegal alien."

Definitions used in this act are significant. "Contractor" is defined as any person having any type of agreement with a state agency or "political subdivision" for the procurement of "services." "Political subdivision" is defined to include cities, towns, counties, special districts, school districts, improvement districts, municipal corporation, quasi-municipal corporations, and public corporations. "State Agency" is defined as any department, commission, council, board, bureau, committee, institution of higher education, agency, or other governmental unit of the executive, legislative, or judicial branch of state government. "Services" is defined to include "the furnishing of labor, time, or effort by a contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance."

Under the Colorado State law, the State of Colorado's Department of Labor ("DOL") may audit and investigate public contractors at any time. DOL investigators can conduct onsite investigations and request and review documents that employers have that prove nationality and/or citizenship. Non-compliance with the law is equivalent to a breach of contract and the governmental entity can seek actual and consequential damages that it suffers as a result of the termination of the contract arising from the contractor's non-compliance with the law.

Affirmation Of Legal Work Status

General Information on HB 06-1343 and HB 06S-1017

The Act from Colorado - HOUSE BILL 06S-1017

For more information about the Colorado Employment Verification law, please e-mail us.

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