Current through Register Vol. 47, No. 5, March 10, 2024
2.1
"Administrative Procedure" means the process used by the Division to
investigate Complaints arising under any rule or statute cited in Rule
1.1.
2.2 "Authorized
representative" means a person designated by a party to a Complaint to
represent the party during the Division's administrative procedure. To
designate an authorized representative, the party must comply with the
requirements for authorizing a representative in the Wage Protection Rules,
7 CCR
1103-7, Rule 4.3.
2.3 "Complaint" or "Claim" interchangeably
mean a Complaint or Claim alleging violation of any retaliation, interference,
or notice requirements of any statute or rule cited in Rule 1.1. "Complainant"
means an employee, worker, whistleblower, key service provider, or other
protected party with a Complaint or Claim.
2.4 "Certified copy" means a copy of a
Division decision (including under these Rules and/or laws they implement and
enforce) as defined, following the procedures, and with the effect set forth in
Wage Protection Rule 2.4.
2.5
"Correct address" can include, but is not limited to, an email address reported
to the Division or posted on a party's website, an address on file with the
Colorado Secretary of State, the address of a registered agent on file with the
Colorado Secretary of State, or an address provided to the Division by the
party. A notice is deemed sent to a party when placed in the U.S. mail; sent by
electronic means; or personally delivered to a party or a party's
representative, or a party's correct address.
2.6 "Determination" means a decision issued
by a compliance investigator upon the conclusion of an investigation.
"Determination" includes: Citation and Notice of Assessment, Determination of
Compliance, and Notice of Dismissal, if that Notice of Dismissal is issued
after the Division initiated the administrative procedure. A notice that the
Division declines to investigate a Complaint is not a Determination.
2.7 "Division" means the Division of Labor
Standards and Statistics in the Colorado Department of Labor and
Employment.
2.8 "Employee" and
"Employer" have the same meaning as in C.R.S. §§
8-4-101(5),(6),
except as to rights or responsibilities under C.R.S. Title 8, (A) Article 13.3,
"Employee" and "Employer" have the same meaning as in C.R.S. §§
8-13.3-402(4),(5);
and (B) Article 5, "Employee" and "Employer" have the same meaning as in C.R.S.
§§
8-5-101(4),(5). As
used in these rules, the term "Employee" includes an agricultural employee as
defined in C.R.S. §
8-2-206(1)(b) and
an agricultural worker as defined in C.R.S. §
8-13.5-201(3), and
the term "Employer" includes an agricultural employer as defined in C.R.S.
§
8-2-206(1)(c),
except as otherwise provided.
2.9
"Notice of Right to Sue" means a notice from the Division stating that the
Complainant has exhausted administrative remedies pursuant to C.R.S. §
8-14.4-105, and/or that the
Division has received and declined to investigate a Complaint for purposes of
C.R.S. §§
8-2-206(3)(c)(II),
8-13.3-411(4)(d),
or 8-13.5-204(1)(b).
2.10 "Respondent" means an employer or
principal that is alleged in a Complaint or Claim to have, or that is the
subject of an investigation into whether they have, committed an unlawful
practice.
2.11 In "retaliation" or
"interference" claims or investigations, the following definitions apply:
2.11.1 "Protected activity" means, as to any
right under these Rules or any statute or rule to which these Rules apply:
(A)asserting, seeking, or exercising any
right or remedy;
(B)opposing a
possible or perceived violation;
(C)participating in a formal or informal
investigation, hearing, complaint, or other process or proceeding that relates
to any possible or perceived violation, or that relates to any relevant claim,
right, or rule; and/or
(D)engaging
in any other activity authorized or protected thereby.
With respect to rights under PHEW, "protected activity" is
further defined in Rule 5 herein.
2.11.2 "Retaliation" means, and is synonymous
with, discrimination based on or for protected activity, and it encompasses any
act (whether an affirmative act, an omission, or a statement) that is intended
to, and could, deter a reasonable person from engaging in, or impose
consequences for, protected activity. Examples of retaliation include:
(A)using the assertion or exercise of any
right protected by these Rules, or any statute or rule to which these Rules
apply, as a negative factor in any employment action;
(B)acts that may not affect employment status
but that may dissuade, deter, or interfere with engaging in protected activity,
such as acts prohibited by Rule 4.8.2 of the Wage Protection Rules
(7 CCR
1103-7), or acts that interfere or threaten to
interfere with the receipt of public benefits.
2.11.3 "Interference" means any act (whether
an affirmative act, an omission, or a statement) that, regardless of intent,
interferes with any protected activity or any right under these Rules or any
statute or rule to which these Rules apply, including any act that deters any
protected activity. Examples of acts that may constitute interference include:
(A)failing to authorize the exercise of a
right, imposing stricter conditions upon exercising a right (e.g., as to
documentation or notice) than the applicable statute or rule permits, or
altering employment conditions, rules, or procedures to limit
coverage;
(B)failing to effectively
provide a required notice or notification as to an employee's rights;
(C)inducing or attempting to induce an
employee, worker, whistleblower, key service provider, or other protected party
to prospectively waive a right;
(D)imposing consequences (whether or not
employment-related) for or discouraging the exercise of any such right, such as
by counting paid sick leave taken by an employee pursuant to HFWA as an absence
that may lead to negative consequences;
(E)"access interference" with an agricultural
employee's rights to reasonable access (as defined by C.R.S. §
8-13.5-202 and the Agricultural
Labor Conditions Rules,
7 CCR
1103-15, Rule 4) to visitors at employer-provided
housing, to employee residence access and egress, to key service providers, or
to required transportation; except an agricultural employer may apply generally
applicable hazard or safety protocols to work site visitors.
2.12 "Wage Protection
Rules" refer to the rules contained in
7 CCR
1103-7.
2.13 "Willful," in Articles within C.R.S.
Title 8 that this Division enforces or administers, has the same meaning as
under the federal Fair Labor Standards Act, as used and defined in
29 U.S.C §
255(a) and
29 C.F.R. §
578.3(c).
2.14 "Worker" and "principal," as to rights
or responsibilities under C.R.S. Title 8, Article 14.4, have the same meaning
as in C.R.S. §§
8-14.4-101(3),(5).
2.15 Any other definitions set forth in
statutes enforced through these Rules are hereby incorporated by reference,
except where terms are defined differently in these Rules.
2.16 Under the ALRRA and PHEW, a
"whistleblower" is defined as follows, and need not have personally experienced
the relevant violation:
(A)under the ALRRA, an
agricultural employee "with knowledge of an alleged violation of Part 2 [of
Article 13.5 of C.R.S. Title 8] or the agricultural worker's representative"
(as defined in C.R.S. §
8-13.5-201(4));
and
(B)under PHEW, a worker with
knowledge of an alleged violation of Article 14.4 of C.R.S. Title 8 or the
"worker's representative" (as defined in C.R.S. §
8-14.4-107).
2.17 Under the ALRRA, the definitions of the
following parties apply.
2.17.1 "Agricultural
employee" and "agricultural worker," as to rights and responsibilities under
C.R.S. §
8-2-206 of the ALRRA, identically
mean a person employed by an agricultural employer. As to other rights and
responsibilities under the ALRRA, "agricultural employee" and "agricultural
worker" identically mean an employee engaged in any service or activity
included in 29 U.S.C. §
203(f) or
26 U.S.C. §
3121(g).
2.17.2 "Agricultural employer," as to rights
and responsibilities under the ALRRA, means a person engaged in any service or
activity included in 29
U.S.C. §
203(f) or
26 U.S.C. §
3121(g) who either (1)
contracts with any person who recruits, solicits, hires, employs, furnishes, or
transports agricultural employees, or (2) regularly engages the services of one
or more agricultural employees. Under C.R.S. §
8-3-104(1)(b) of
the ALRRA, "[t]he meaning of 'agricultural employer' must be liberally
construed for the protection of persons providing services to an
employer."
2.17.3 "Other protected
party," as to rights and responsibilities under the ALRRA, means a person who
has, or is perceived as having, any of the following relationships protected
against retaliation by C.R.S. §
8-2-206 of the ALRRA:
(A)a "familial . . . relationship" with an
agricultural employee (C.R.S. §
8-2-206(3)(c)),
which encompasses (1) a spousal relationship (including a common-law marriage,
civil union, or domestic partner), (2) any of the following relationships by
blood, marriage, or adoption: parent, grandparent, child, grandchild, sibling,
stepparent, stepsibling, stepchild, uncle, aunt, niece, nephew, or cousin, or
(3) another person with whom the employee similarly has a significant personal
bond regardless of biological or legal relationship.
(B)a "workplace relationship" with an
agricultural employee (C.R.S. §
8-2-206(3)(c)),
which encompasses any person with whom the employee has interacted repeatedly
in the scope of their employment, regardless of the person's employer or
employment status.
(C)a "person
with whom the agricultural employee exchanges care or support" (C.R.S. §
8-2-206(3)(c)),
which encompasses any relationship in which the employee or the person, outside
of their scope of employment, provides care or support to the other with (1)
health, family care, transportation, or similarly important personal needs, or
(2) any other needs that the individual lacks capacity to perform on their own,
such as hygiene, financial or similar paperwork, or home tasks (basic cleaning,
shopping, cooking, maintenance, etc.).
2.18 For the purposes of the C.R.S. §
8-4-120 provisions against
retaliation as to rights under "any . . . law or rule related to wages or
hours":
2.18.1 "Filed any complaint" includes
formal or informal complaints, written or oral, whether to a court; a
governmental labor agency; an employer or principal; or another relevant entity
or person, public or private.
2.18.2 "Proceeding" includes any procedure,
process, or action by a court; a governmental labor agency; an employer or
principal; or another relevant entity or person, public or private.
2.19 As referenced by C.R.S.
§
8-14.4-102(3)(b),
"public health agency" means agencies or authorities of the United States,
states or political subdivisions thereof with jurisdiction over the worker's
workplace; or an individual or entity performing public health functions under
a grant of authority from such a public health agency.
