July 28, 2016

Three New Colorado Employment Laws on the Horizon: Employment Verification, Pregnancy Accommodations and Personnel-File Inspection

This legal update was updated on August 11, 2016

The Colorado General Assembly passed three laws in 2016 that affect Colorado employers. This legal update briefly describes the new laws and suggests steps employers should take to assure future compliance:

Colorado Employment-Verification Law Repealed

First, Colorado repealed most of its state Employment-Verification Law. Effective August 10, 2016, Colorado employers no longer need to complete the Colorado Affirmation Form for new employees. Under the repealed version, Colorado’s Employment-Verification Law required Colorado employers to complete the Affirmation Form, affirming they had: (1) examined the legal work status of each employee; (2) retained copies of the employee’s identification and employment authorization documents presented for completion of the federal Form I-9; (3) not falsified the employee’s identification documents; and (4) not knowingly hired an unauthorized alien.

The Affirmation Form and corresponding document-retention requirements applied to all Colorado employees hired on or after January 1, 2007, and provided for random audits, employee complaints and stiff penalties against employers for violations. In repealing most of the Employment-Verification Law, the Colorado legislature declared Colorado’s employment-verification affirmation “unnecessary and redundant due to existing federal I-9 requirements,” and noted that the law placed additional burdens on employers that did not prevent unauthorized individuals from working. One provision that remains of the Employment-Verification Law, however, states that the Division of Labor may request documentation and conduct random audits to verify employers’ compliance with the federal Form I-9 employment-verification requirements.

Accordingly, beginning August 10, 2016, employers should no longer complete the Colorado Affirmation Form for new Colorado hires. However, employers should keep the Affirmation Forms and copies of I-9 documents for existing employees hired between January 1, 2007 and August 9, 2016 on file for the duration of the employees’ employment. Of course, employers must continue completing the federal Form I-9 for employees going forward. Employers should also consider their overall on-boarding practices and objectives and consult with a member of the FaegreBD labor and employment team about whether to keep copies of employees’ identification and employment-authorization documents presented for federal Form I-9, as making and retaining such copies is generally permissible, but not required, under federal law. Please note that employers who participate in E-Verify are required to retain certain documents as outlined in the E-Verify Memorandum of Understanding for Employers.

Pregnancy Accommodations

Beginning August 10, 2016, an amendment to the Colorado Anti-Discrimination Act requires Colorado employers to provide reasonable accommodations for employees who cannot perform the essential functions of their job because of health conditions related to pregnancy or childbirth. The new law also prohibits employers from: (1) taking adverse action against employees who request such an accommodation; (2) denying employment opportunities based on the need to make such accommodations; (3) imposing an unnecessary accommodation or one that the employee did not request; or (4) requiring the employee to take leave if another reasonable accommodation is available. The new law does not require employers to hire new employees; discharge or transfer another unqualified employee; or create a new position — including a light-duty position — for a pregnant employee. And employers need not provide paid leave beyond what is provided to similarly situated employees. 

The law mandates that employers and employees engage in an interactive process, a concept borrowed from the disability-accommodation context. As of August 10, 2016, employers must give new employees notice of the new pregnancy rights and must give notice to existing employees no later than December 8, 2016. There are posting requirements as well. A violation of the accommodation requirements is a discriminatory or unfair employment practice under the Colorado Anti-Discrimination Act, but employers can avoid punitive damages by showing they acted in good faith.

Employers would be well advised to begin preparing for the new law by taking the following steps:

  • Revise policies and procedures to reflect the new pregnancy-related protections, including procedures to recognize and react to requests for reasonable accommodations under the law.
  • Review job descriptions to ensure that essential functions are accurately described.
  • Provide notice to new employees beginning August 10, 2016.
  • Provide notice to existing employees no later than December 8, 2016.
  • Post the required notice in a conspicuous place accessible by employees.
  • Train managers, supervisors and other affected employees such as human resources.

Employees May Inspect Personnel Files

Effective January 1, 2017, current and former employees of most private Colorado employers will have a limited right to inspect and obtain a copy of their personnel files. (The law does not apply to state employees or financial institutions.) The stated purpose of the new law is to foster open communication and deter frivolous lawsuits. Generally, employers must allow employees to inspect and copy their own personnel files at least once a year. The act defines “personnel files” broadly, but it also contains important exclusions. First, the law does not require employers to create, maintain or retain personnel files. Second, “personnel file” does not include documents required to be maintained separately, such as medical records; documents related to confidential reports from previous employers; active investigation documents; or information identifying a confidential accuser against the employee. Additionally, employers may require that the inspection take place in the presence of an employer representative and employers can require the employee to pay the reasonable costs of copying the file. Finally, the act does not create a private right to sue.

In anticipation of the law’s January 1, 2017 effective date, employers should decide under what circumstances they will permit employees to inspect and copy records. Consistency is important and therefore we recommend that employers have a written policy that addresses who (if anyone) will be present when employees inspect files and whether or not employees will be required to pay for copies. Employers should take time before the effective date to review the contents of personnel files and ensure that they do not contain records that should be kept separately.

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