Code of Colorado Regulations
1100 - Department of Labor and Employment
1101 - Division of Labor Standards and Statistics (Includes 1103 Series)
7 CCR 1103-11 - COLORADO WHISTLEBLOWER, ANTI-RETALIATION, NON-INTERFERENCE, AND NOTICE-GIVING RULES ("Colorado WARNING Rules")
3 - Complaint, Investigation, and Appeal Procedures
Universal Citation: 7 CO Code Regs 1103-11 ยง 3
Current through Register Vol. 47, No. 17, September 10, 2024
3.1 Wage Protection Rules 4.1 and 4.3 -4.8 , 7 CCR 1103-7, regarding investigation procedures and protections, are incorporated by reference, except that as incorporated:
(A)all references to "wage" or "wage and
hour" Complaints, Claims, rights, responsibilities, or proceedings shall
include other labor rights or responsibilities within these Rules;
(B)in Rule 4.4.3 "C.R.S. §
8-4-113(1)(b)" is
replaced with "C.R.S. §
8-1-140(2)";
and
(C)for Claims under PHEW and
the ALRRA, references to "employers" or "employees" shall include "principals"
and "workers," respectively, as defined by PHEW and these Rules, and
"agricultural employers" and "agricultural employees," respectively, as defined
by the ALRRA and these Rules.
3.2 Complaint filings.
3.2.1 An employee, worker, whistleblower, key
service provider, or other protected party who wishes to file a Complaint shall
use a Division-approved form(s) and shall include the Complainant's signature,
the Complainant's contact information, the Respondent's contact information,
and basis for the Complaint. If the Division does not have an applicable form
publicly posted when the Complainant intends to file, then a Complainant may
file a Complaint in any form, by mail or electronic mail, with the Division,
and the Division may later require the Complainant to complete the Division's
Complaint form, but the filing date will remain the date of the Complainant's
original filing.
3.2.2 A
Complainant shall respond in a timely manner to informational or investigatory
requests by the Division. Failure to comply with this Rule may result in
dismissal of the Complaint. If a Complaint is dismissed before a Notice of
Complaint is sent to the Respondent due to failure to respond to a Division
request for information, the Complaint may be reopened if the Complainant
provides the requested information or documentation to the Division within 35
days of the request. A Complainant may be required to file a new Complaint if
the response is received more than 35 days after the request.
3.2.3 Anonymous complaints will be accepted,
but will not be investigated using the Division's administrative procedure, and
will be investigated only at the discretion of the Division.
3.3 Filing, service, and deadlines.
3.3.1 A Complaint or appeal is
considered "filed" with the Division when it is received by the Division via
mail, fax, email, online submission, or personal delivery. Any Complaint,
appeal, or termination received after 11:59pm Mountain Time is considered filed
the next business day.
3.3.2
Deadlines in these Rules may be extended for good cause. In considering whether
good cause exists, under these Rules or applicable statutes allowing good-cause
extensions of deadlines, the Division will determine whether the reason is
substantial and reasonable, and must take into account all available
information and circumstances pertaining to the specific Complaint.
3.3.3 Within 90 days of receipt of a
Complaint (or within 90 days of the effective date of these Rules, whichever is
later), the Division will (A) assess whether it will exercise its discretion to
investigate the Complaint, and (B) inform the Complainant of the decision,
including sending the Complainant a Notice of Right to Sue if the Complaint is
subject to C.R.S. §§
8-14.4-105(2)(b),
8-2-206(3)(c)(II),
8-13.3-411(4)(d),
8-13.5-204(1)(b)
and the Division declines to exercise its discretion to investigate the
Complaint. Under this Rule 3.3.3, the Division's decision whether to
investigate the Complaint is not required until 90 days after the Complainant
has provided all information and documents needed to complete, process, and
evaluate the Complaint.
3.3.4 In a
Complaint investigation, the Division will send the Respondent a Notice of
Complaint, along with any relevant supporting documentation submitted by the
Complainant, via U.S. mail, electronic means, or personal delivery. A
Respondent must respond within four weeks after a Complaint is sent to them,
unless an extension is granted.
3.3.5 Where a retaliation or interference
Complaint or investigation governed by these Rules is filed or commenced, the
Respondent shall comply with the federal "Preservation of records made or kept"
rule, 29 C.F.R. §
1602.14, requiring that the Respondent "shall
preserve all personnel records relevant to the charge or action until final
disposition of the charge or the action." For purposes of retaliation or
interference Claims, relevant "personnel records relevant" include but are not
limited to:
(A)requests or statements by the
individual that are claimed to be protected activity;
(B)responses to, or analyses of, such
request(s) or statement(s);
(C)policies or decisions, formal or informal,
that may apply to such request(s) or statements(s); and
(D)to the extent relevant to the Complaint or
investigation (e.g., if the possible violation includes
disparate treatment based on protected activity), the contents of "personnel
files" (as defined by C.R.S. §
8-2-129(c)) of the
Complainant and "other[s] ... holding positions similar to that held or sought
by the aggrieved person and application forms or test papers completed by an
unsuccessful applicant and by all other candidates for the same position as
that for which the aggrieved person applied and was rejected" (29 C.F.R. §
1602.14).
3.3.6 A Complainant may withdraw a Complaint
at any time before issuance of a determination by notifying the Division in
writing. Additionally, for a Complaint under PHEW, HFWA, or the ALRRA:
(A)whether or not a Complainant requests
Complaint withdrawal or a Notice of Right to Sue, the Division may exercise its
discretion to terminate an investigation at any time, in which case it will
promptly send a Notice of Right to Sue; and
(B)if a Determination has not been sent by
180 days after the date the Division notifies the Claimant of its decision to
investigate, the Complainant may request a Notice of Right to Sue, and the
Division will respond within 30 days by sending either (1) the
determination or (2) a Notice of Right to Sue indicating that the
Division has terminated the investigation and that the Complainant has
exhausted administrative remedies if required to do so.
3.4 Burdens of proof and production.
3.4.1 Complaints of retaliation
are analyzed as follows, with the preponderance of the evidence standard
applying to all burdens of proof.
(A)The
Complainant has the burden of proving all elements of a Claim, including that
unlawful retaliation occurred. The Respondent must explain which, if any,
allegations it disputes. Any evidence probative of a relevant issue may be
submitted or considered. If an agricultural employer takes an "adverse action"
(as defined in C.R.S. §
8-2-206(1)(a))
against an agricultural employee within 90 days of protected activity, under
C.R.S. §
8-2-206(3)(b),
that creates a rebuttable presumption of retaliation, shifting the burden of
proof to the Respondent to offer any such rebuttal.
(B)If the Complainant proves unlawful
retaliation or discrimination was a motivating factor for the complained-of
practice, then a violation is proven. However, if a violation is proven but the
Respondent proves that the complained-of practice would have occurred for
another lawful reason, then the Division shall not award reinstatement, back
pay, or front pay as of the date the practice would have occurred.
3.4.2 Complaints of interference
or failure to provide any required notice are analyzed as follows, with the
preponderance of the evidence standard applying to all burdens of proof.
(A)The Complainant has the burden of proving
all elements of a Claim, including that unlawful interference or failure to
provide required notice occurred. The Respondent must explain which, if any,
allegations it disputes. Any evidence probative of a relevant issue may be
submitted or considered.
(B)If the
Complainant meets its burden of proof, then a violation is proven. However, if
a violation is proven but the Respondent proves that the complained-of practice
would have occurred for another lawful reason, then the Division shall not
award reinstatement, back pay, or front pay as of the date the practice would
have occurred.
3.5 Determinations.
3.5.1 Upon conclusion of the investigation of
a Complaint, the Division will issue a determination. The Division shall notify
the parties on the date the determination is issued by the Division's
compliance investigator by sending (a) a copy of the determination; and (b)
notice of the parties' termination and appeal rights.
3.5.2 The date of "issuance" of the
Division's determination is the date the Division's determination is "sent."
Both the termination and appeal deadlines are calculated from the date the
Division's determination is originally issued and sent to the
parties.
3.5.3 Determinations by
the Division may include the following remedies and orders, depending on which,
if any, the Division's findings support:
(A)monetary or other relief authorized by the
statute(s) under which the Complaint was filed, including but not limited to,
where applicable --
(1)any unpaid wages,
penalties, fines, and/or other remedies under C.R.S. Title 8, Article
4,
(2)if a violation of C.R.S.
Title 8, Articles 13.3 (HFWA) or 14.4 (PHEW) cost an employee or worker a job
or pay, back pay plus either reinstatement or (if reinstatement is infeasible)
front pay for a reasonable period,
(3)the greater of actual damages or ten
thousand dollars for each violation of the ALRRA, as stated in C.R.S.
§§
8-2-206 and
8-13.5-204, and/or
(4)other fines or penalties authorized by
statutes applicable to the Complaint;
(B)fines or penalties authorized by the
statutes on Division investigative and enforcement authority in C.R.S. Title 8,
Articles 1 and 4; and/or
(C)order(s) to cease non-compliance,
effectuate compliance, and/or otherwise redress direct or indirect consequences
of violations, as authorized by the statute(s) under which the Complaint was
filed and statutes on Division investigative and enforcement authority,
including but not limited to C.R.S. Title 8, Article 1, §
8-2-206(3)(c)(I),
Articles 4-6, and §
8-13.5-204(1)(b),
(2)(a)(I); and/or
(D)for any award under C.R.S. §
8-13.5-204 of the ALRRA, the
Division's determination must order that any amounts recovered by a
whistleblower or key service provider pursuant to the award must be distributed
to agricultural workers affected by the violation who can be located, insofar
as such disbursement is economically feasible.
3.6 The Division may exercise its discretion to have an investigation sequenced and/or divided into two or more stages on discrete questions of liability or relief (e.g., bifurcation), yielding two or more determinations and/or phases of the investigation.
3.7 Appeals.
3.7.1 Any party to a Claim or determination
may appeal the Division's determination. The provisions governing appeals under
Rule 6 of the Wage Protection Rules, 7 CCR 1103-7, as amended and modified (or,
for direct investigations, Rule 6 of the Direct Investigation Rules, 7 CCR
1103-8, as amended and modified), shall apply to Claims or determinations under
these Rules. Parties may not appeal the Division's discretionary decisions as
to whether or not to investigate a Complaint.
3.7.2 An appeal may, in the discretion of the
hearing officer, be sequenced and/or divided into two or more stages on
discrete questions of liability or relief (e.g., bifurcation),
yielding two or more decisions and/or phases of the appeal.
3.7.3 From the time of the filing of an
appeal throughout the appeal, a party or other participant in an appeal must
send complete copies of all appeal submissions to the contact information and
in the manner designated (a) in the determination and/or any accompanying
notices from the Division, and (b) in any subsequent orders or notices from the
Division.
3.8 A certified copy of any citation, notice of assessment, or order imposing relief or remedies may be filed with the clerk of any court having jurisdiction over the parties at any time after the entry of the order. Such a filing can be in a county or district court, and will thereby have the effect of a judgment from which execution may issue.
3.9 To the extent applicable, Wage Protection Rule 7, 7 CCR 1103-7, is incorporated by reference.
3.10 To the extent applicable, Wage Protection Rule 8, 7 CCR 1103-7, is incorporated by reference.
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