Chapter 19 - § 19.6 • PERSONNEL ADMINISTRATION

• Jurisdiction: Colorado

§ 19.6 • PERSONNEL ADMINISTRATION

§ 19.6.1—Pre-Employment Inquiries (Job Advertisements, Employment Applications, and Interviews)

Job advertisements, employment applications, and interview questions should be limited to communication of job-related information and investigation of an applicant's job-related qualifications. Under the Colorado Anti-Discrimination Act, unless a particular characteristic is a bona fide occupational qualification, see §§ 19.3.2 and 19.3.3, employers may not ask questions that reference or solicit information regarding disability, race, creed, color, sex, age, national origin, or ancestry. C.R.S. § 24-34-402(1)(d). See also C.R.S. § 24-34-401(f)(III) (regarding training programs); CCRD Rule 40.3 regarding age-related limitations in advertisements. Courts interpreting federal law (such as Title VII and the ADEA) have similar views of the applicant screening process. See EEOC Fact Sheet, "Federal Laws Prohibiting Job Discrimination Questions and Answers," available at www.eeoc.gov. The CCRD also specifically prohibits asking applicants to submit photographs of themselves unless required by a bona fide occupational qualification. CCRD Rule 20.3.

Practice Pointer
It is a good idea to include on the application form, above the space for the applicant's signature, a release and waiver authorizing the employer to verify the information the applicant provides.

The requirements of the Americans with Disabilities Act (ADA) can be particularly tricky to navigate. The EEOC has published extensive enforcement guidance on pre-employment inquiries under the ADA. "EEOC: Enforcement Guidance on Pre-employment Disability-Related Inquiries and Medical Examinations Under the Americans With Disabilities Act," Notice No. 915.002, dated October 1995. All EEOC Enforcement Guidance is available on the EEOC website, www.eeoc.gov. See also EEOC Fact Sheet, "Job Applicants and the Americans with Disabilities Act," available at www.eeoc.gov/facts/jobapplicant.html. Generally, employment is divided into three stages: before the job offer, after the job offer, and during employment. During the first stage, an employer is not allowed to ask questions that are likely to cause the applicant to divulge the existence of a disability. At this stage, the employer cannot require medical tests and can only ask whether an applicant can perform essential job functions.

After an offer has been made but before the applicant has started working, employers may require medical tests, but only if such tests are required of all applicants in the same job category. The employer may withdraw the job offer only if the tests reveal that the applicant cannot perform the essential functions of the job (with or without reasonable accommodation) or if placing the candidate in the job — given the applicant's medical condition — would pose a direct threat to the health or safety of the applicant or other employees.

For current employees, employers may require medical tests or ask medical questions only when they are job-related and consistent with business necessity. See "EEOC: Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)," available at www.eeoc.gov/policy/docs/ guidance-inquiries.html. The only exception is drug testing. The ADA does not protect current users of illegal drugs, nor does it consider drug testing a medical exam. 42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a).

§ 19.6.2—Employment Eligibility Requirements

Federal Law — Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from knowingly employing individuals not authorized to work in the United States. 8 U.S.C. §§ 1321 through 1330, in particular, § 1324a captioned "Unlawful Employment of Aliens." It applies to all employers, regardless of size. 8 C.F.R. pt. 274a, § 274a.1(g). An employer must verify the identity and employment eligibility of anyone to be hired, whether full-time, part-time, temporary, or casual labor, and must document the verification on an Employment Eligibility Verification Form (I-9). 8 C.F.R. pt. 274a, § 274a.2. Employers must examine specific documents that verify both an individual's identity and eligibility for employment. Acceptable documents are listed on the I-9 form itself, which is available online. See www.uscis.gov/files/form/i-9.pdf.

IRCA does not require employers to become experts in assessing the authenticity of documents. An employer is deemed to have complied with the documentation requirement if the documents "reasonably appear" to be genuine. 8 U.S.C. § 1324a(b)(1)(A). Documents submitted and examined, however, must be originals or certified copies; photocopies are not acceptable.

Examination of documents and completion of the Form I-9 must occur within three business days of the actual commencement of employment. 8 C.F.R. pt. 274a, § 274a.2(b)(1)(ii). Employers who employ individuals for less than three days, however, must examine the documentation and complete attestation prior to the end of the first working day. 8 C.F.R. pt. 274a, § 274a.2(b)(1)(iii). In the event an individual is unable to produce the required documents, but provides the employer with a receipt indicating he or she has applied for the necessary documentation within three business days of hire, verification need not be completed until 21 days after hire. 8 C.F.R. pt. 274a, § 274a.2(b)(1)(vi).

Employers must keep each I-9 on file for at least three years or one year after employment ends, whichever is longer. 8 U.S.C. § 1324a(b)(3).

Failure to verify and document an employee's status under IRCA subjects an employer to substantial penalties, including both civil and criminal liability with the imposition of substantial fines ranging from $100 to $1,000 per hire, as well as possible imprisonment for a pattern or practice of noncompliance. 8 U.S.C. § 1324a(e)(5).

IRCA also prohibits discrimination in hiring and discharge based on national origin (similar to Title VII) and on citizenship status. IRCA's anti-discrimination provisions are intended to prevent employers from attempting to comply with the statute's work authorization requirements by discriminating against foreign-looking or foreign-sounding job applicants. 8 U.S.C. § 1324b. IRCA's national origin discrimination provisions apply to employers with between four and fourteen employees (who would not be covered by Title VII). IRCA's citizenship discrimination provisions apply to all employers with at least four employees. Id.

State Law

On August 10, 2016, Colorado repealed its prior requirement that all employers complete and retain employment verification forms for all new hires. HB 16-1114, enacted June 8, 2016 (amending C.R.S. § 8-2-122), codified at 11 C.C.R. § 1103-3. In the bill, the Colorado General Assembly explained its finding that the state collection requirement unnecessarily burdened employers because it was redundant of federal requirements for the Form I-9. Elimination of the state employment verification law also means that Colorado employers are no longer required to maintain copies of the identity and employment eligibility documents employees present in support of the Form I-9. In addition, the legislative amendments eliminated penalties for non-compliance.

Colorado employers that enter into or renew public contracts for services with a state agency or political subdivision are subject to additional requirements. Specifically, these employers are required to use the federal government's "E-Verify" system or the state's Department Program in order to confirm the employment eligibility of all newly hired employees who perform work under the public contract. C.R.S. §§ 8-17.5-101 and -102. This statute was amended effective May 13, 2008, to allow for Department Program participation as an alternative to use of E-Verify. See "Fact Sheet," available at www.colorado.gov/pacific/cdle/pcs.

§ 19.6.3—Personnel Records/Recordkeeping Requirements

As of January 1, 2017, private employers must allow employees to inspect and copy their personnel files at least once a year. C.R.S. § 8-2-129. Former employees have the right to inspect their files once after termination. Id. The law does not require employers to create personnel files. However, if a personnel file exists, an employer must provide an employee access to his or her file.

Employers are required by federal and state laws to maintain certain records relating to their employees for varying periods of time. Employers with 100 or more employees must complete an annual EEO-1 Report, which is filed with the EEOC. 29 C.F.R. § 1602.7. The report contains a workforce profile by occupational category, sex, race, and national origin. This information may be obtained by either a survey instrument or observation. 29 C.F.R. § 1602.13. In collecting such information, employers must take care to ensure that the information is not used for any impermissible purpose.

§ 19.6.4—Notices

Each of the federal employment laws...