Revised Colorado Affirmation Form Use Mandated as of October 1, 2014

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

The Colorado Department of Labor and Employment (CDLE) published a revised Colorado Affirmation Form on September 1, 2014. The CDLE will not accept any other version of the form on or after October 1, 2014. You may access the revised form at: https://www.colorado.gov/pacific/sites/default/files/EVL-MandatoryAffirmationForm9-1-14.pdf.

Any company that employs workers in Colorado must complete and maintain a Colorado Affirmation Form for each employee hired on or after January 1, 2007. The Affirmation Form must be completed by the employer within 20 days of the date of hire for all new hires. The employer essentially attests that she has complied with the federal Form I-9 Employment Authorization Verification requirements. Among other attestations, the employer must attest that she has “examined the legal work status” and “retained file copies of the documents required” for completion of the Form I-9 pursuant to 8 U.S.C. § 1324a. However, unlike the federal form, Colorado requires that the employer copy the documents an employee presents to prove employment authorization and file the copies with the Colorado Affirmation form. The Affirmation Form must be maintained as long as the employee continues to work for the employer. Form I-9s and Affirmation Forms should be maintained in separate locations or files and not in general personnel files.

The CDLE is auditing employers and assessing fines if employers fail to comply with the Affirmation Form. The CDLE has conducted over 7,000 such audits, most at random, since the law’s enactment in 2007. Out of that pool, as many as 180 employers have been fined for violations. Penalties for the “reckless disregard” of the documentation requirement or submission of false or fraudulent documentation may be subject to fines as much as $5000 for each first offense and up to $25,000 for each subsequent offense. Employers should conduct regular self-audits both of the Form I-9s and the Colorado Affirmation forms, train all staff responsible for the collection of personnel documentation, and include Colorado Affirmation requirements in policy and procedure documentation. Employers are also wise to consult with immigration and employment law attorneys to assure compliance both with the federal and state government employment authorization verification laws.