Code of Colorado Regulations
1100 - Department of Labor and Employment
1101 - Division of Labor Standards and Statistics (Includes 1103 Series)
7 CCR 1103-7 - WAGE PROTECTION RULES
3 - Filing a Wage Complaint

Universal Citation: 7 CO Code Regs 1103-7 ยง 3

Current through Register Vol. 47, No. 5, March 10, 2024

3.1 An employee who wishes to file a wage complaint with the Division shall use the Division-approved form(s), and shall comply with any other Division instructions as to information or submissions required by the Division.

3.1.1 A wage complaint may only be filed by the employee who did not receive his or her wages or compensation.

3.1.2 A wage complaint shall include the employee's signature, employee's contact information, employer's contact information, and basis for the wage complaint. Failure to include this information on the wage complaint form may result in dismissal of the wage complaint.

3.1.3 The failure of an employee to respond in a timely manner to informational or investigatory requests by the Division may result in dismissal of the wage complaint.

3.1.4 If a wage complaint is dismissed before a Notice of Complaint is sent to the employer because the employee failed to respond to a Division request for information, the complaint may be reopened if the employee provides the requested information or documentation to the Division within 35 days of the Division's request for information. Employees may be required to file a new complaint if the employee's response is received more than 35 days after the Division's request for information.

3.1.5 The Division shall accept wage complaints for amounts up to $7,500 per employee, and may investigate any amounts shown to be owed in an investigation, including in investigations the Division initiates without a wage complaint.

3.1.6 An anonymous complaint is not a "wage complaint" within the meaning of C.R.S. § 8-4-111 and C.R.S. §§ 8-13.3-402(8)(a)(I) -(II), - 407, -410, -411 and will not be investigated using the Division's administrative procedure. The Division may choose to address an anonymous complaint outside of the administrative procedure.

3.2 An employee may pursue a wage complaint through either the court system or the Division's administrative procedure.

3.2.1 Employees are not required to use the Division's administrative procedure in order to pursue a wage complaint in court.

3.2.2 The Division may dismiss or stay an investigation decided by, or pending in, a court or other Labor Department with jurisdiction, based on the Division's judgment as to whether Division involvement would be productive rather than duplicative.

3.2.3 As provided by C.R.S. § 8-4-113(2), a certified copy of any citation, notice of assessment, or order imposing wages due, fines, or penalties pursuant to this article 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.

3.3 The employee may withdraw the wage complaint, or their participation in a complaint filed on their behalf as a similarly situated employee, at any time prior to issuance of a determination by notifying the Division in writing.

3.4 The Division may exercise its discretion to consolidate complaints, or 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.

3.5 Accrual, use, and other matters relating to paid leave under HFWA.

3.5.1 Accrual of HFWA leave. Paid leave begins to accrue at the commencement of employment or on January 1, 2021, whichever is later.
(A) For the minimum HFWA accrual rate of one hour of leave for every 30 hours worked, up to cap of 48 hours per benefits year (C.R.S. § 8-13.3-403(2)(a)), accrual is based on all "time worked" under Rule 1.9 of the COMPS Order, 7 CCR 1103-1, with regular and overtime hours counting equally; except under C.R.S. § 8-13.3-403(2)(c), an overtime-exempt employee accrues paid leave based on their normal hours worked up to a maximum of forty per week. Once employees have accrued 48 hours of paid leave during the benefit year, they do not accrue more, except if an employer chooses to provide paid leave in a greater amount. C.R.S. §§ 8-13.3-403(2)(a), -413.

(B) For hours accrual for purposes of C.R.S. § 8-13.3-403(2)(a), the best available, reasonable estimate shall be used for employees paid on a fee-for-service basis for which hours are not ordinarily tracked and cannot feasibly be tracked, except that higher education adjunct faculty paid on a per-credit or per-course basis shall be deemed to work three hours total for each in-class hour.

(C) On the day a public health emergency is declared within the definition of Rule 2.11, employers are required to immediately provide each employee with additional hours of paid leave, usable as of the date of the declaration, January 1, 2021, or the employee's first date of employment, whichever is later - whatever the employee has accrued prior to the declaration of the public health emergency at the regular HFWA rate (i.e., one hour per 30 worked, up to a maximum of 48 per benefit year), and a one-time supplement with the number of hours needed for:
(1) employees who normally work forty or more hours in a week to have access to 80 hours of total paid leave; and

(2) employees who normally work under forty hours in a week to have access to paid leave hours that are at least the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.

(D) During the entire duration of a public health emergency (i.e., during the time between the date on which the emergency is declared and four weeks after the date of the official termination or suspension of the emergency declaration), employers:
(1) are required to permit employees to take both (a) the paid leave they have accrued prior to the declaration date of the public health emergency pursuant to C.R.S. § 8-13.3-403(2)(a), for any of the qualifying reasons provided in C.R.S. § 8-13.3-404(1), and (b) the amount of supplemental paid leave that was provided to the employee on the date of the declaration of a public health emergency, for any of the qualifying reasons provided in C.R.S. § 8-13.3-405(3);

(2) remain subject to the minimum accrual requirements of C.R.S. § 8-13.3-403(2)(a), and employees continue to accrue paid leave (up to 48 hours per benefit year); and

(3) must permit an employee to use the full amount of supplementary leave provided under C.R.S. § 8-13.3-405(1) and this rule, prior to using any of the employee's previously-accrued leave under C.R.S. § 8-13.3-403(2)(a), if an employee required leave in circumstances that qualify under both C.R.S. § 8-13.3-404(1) and C.R.S. § 8-13.3-405(3) (e.g., an employee is experiencing symptoms of a communicable illness that was the subject of the declaration of a public health emergency and needs to obtain testing and treatment).

(E) Yearly Basis for HFWA leave.
(1) Carryover. Pursuant to C.R.S. § 8-13.3-403(3)(b), "up to forty-eight hours of paid sick leave that an employee accrues in a year but does not use carries forward to, and may be used in, a subsequent year." For purposes of C.R.S. § 8-13.3-403(3)(b), "year" means "a regular and consecutive twelve-month period as determined by an employer." C.R.S. § 8-13.3-402(13). The employer shall not be required to, but may, permit an employee to carry forward more than forty-eight (48) hours of unused paid leave from one benefit year to the next. C.R.S. §§ 8-13.3-403(3)(b), -413.

(2) "Benefit year" definition. The applicable "benefit year" is the period of 12 consecutive months established by an employer in which an employee shall accrue and use earned sick leave. Unless otherwise established by an employer in a written policy, a "benefit year" is the calendar year. If an employer transitions from one type of year to another, the employer must ensure that the transition process maintains all HFWA rights, and must notify employees in writing of any such changes.

3.5.2 Pay rate and amount of HFWA leave. Under C.R.S. § 8-13.3-402(8), leave must be paid at the same rate and with the same benefits, including health benefits, as the employee normally earns during hours worked, not including overtime, bonuses, or holiday pay. Leave must be paid on the same schedule as regular wages.
(A) The pay rate for leave must be at least the applicable minimum wage. The HFWA pay rate shall be calculated based upon the employee's pay over the 30 calendar days (or, at the employer's option, any full pay period, or consecutive full pay periods or work weeks, totaling 28 to 31 days) prior to taking leave; shall include any set hourly or salary rates, shift differentials, tip credits, and commissions; and shall not include overtime, bonuses, or holiday pay. If an employee has not yet worked the full 30-day duration (or other duration from 28-31 days) noted above, then the maximum number of available days within that duration shall be used. The HFWA pay rate for employees covered by Rule 3.5.1(B) shall be calculated in accordance with that Rule.

(B) The number of hours of paid HFWA leave an employee can take is the number of hours the employer reasonably anticipated they would have worked during the period of the leave, based on:
(1) their regular schedule of hours actually worked;

(2) or, if leave is during a period the employee was anticipated to depart from a regular schedule, then hours anticipated for that period;

(3) or, if the number of hours the employee would have worked during the period cannot be reasonably anticipated, then their average hours worked during their most recent 30 calendar days of work (or, at the employer's option, the most recent of any full pay period, or consecutive full pay periods or work weeks, totaling 28 to 31 days). If an employee has not yet been employed for the full 30-day duration (or other duration from 28-31 days) noted above, their entitlement must be determined under 3.5.2(B)(1) or (2).

(C) Indeterminate shifts. If an employee uses paid leave for a shift of indeterminate length (for example, a shift that is defined by business needs rather than a previously specified number of hours), an employer may determine the number of paid leave hours used by the employee based on the number of hours actually worked by a replacement employee in the same shift. If there is no replacement employee for the indeterminate shift, an employer may determine the number of paid leave hours used by the employee based on the number of hours actually worked by the employee for their most similar shift in the past.

(D) On-call employees are entitled to use paid leave during any hours they have been scheduled to work, including hours among the employee's on-call time that the employer actually requests the employee to work, or any other hours that would qualify as "time worked" as defined by Rule 1.9 of the COMPS Order, 7 CCR 1103-1. Otherwise, being "scheduled to work" does not include shifts for which an employee has been asked to be available or on-call. However, if an on-call employee has an agreement with an employer to be paid for a scheduled shift regardless of whether the employee actually works the shift, the employer must provide paid leave to a qualifying employee for that shift.

3.5.3 Use of HFWA leave.
(A) Because an employee "may use accrued paid sick leave as it is accrued," C.R.S. § 8-13.3-403(3)(a), HFWA leave may be used immediately upon accrual, but an employer may, in the ordinary course of business and in good faith, verify employee hours within a month after work is performed and adjust accrued leave to correct any inaccuracy, provided that the employee is so notified in writing.

(B) An employer may require use of HFWA leave in hourly increments, or may require or allow smaller minimum increments; if an employer does not specify the minimum increment in writing, employees nevertheless may not use increments smaller than a tenth of an hour (i.e., six-minute increments).

(C) An employer cannot apply an absence or attendance policy to an employee's HFWA-qualifying leave use if it could result in adverse action against the employee, including discipline, as defined in C.R.S. § 8-13.3-407(2)(b). However, after an employee has exhausted all leave required by HFWA, an employer can apply an absence or attendance policy to any absences taken by the employee.

3.5.4 Applicability of a general paid time off ("PTO") policy to HFWA leave. HFWA does not require additional leave if an employer policy provides fully paid leave for both HFWA and non-HFWA purposes (e.g., sick time and vacation) and makes clear to employees, in a writing distributed in advance of an actual or anticipated leave request, that:
(A) its leave policy provides PTO -
(1) in at least an amount of hours and with pay sufficient to satisfy HFWA and applicable rules (including, if a public health emergency is declared, a supplemental amount of leave required to satisfy C.R.S. § 8-13.3-405(1) and Rule 3.5.1(C),

(2) for all the same purposes covered by HFWA and applicable rules, not a narrower set of purposes, and

(3) under all the same conditions as under HFWA and applicable rules, not stricter or more onerous conditions (including but not limited to matters such as accrual, use, payment, annual carryover of unused accrued leave, notice and documentation requirements, and anti-retaliation and anti-interference rights); and

(B) additional HFWA leave need not be provided when employees use all of their available PTO for non-HFWA-qualifying reasons (e.g., vacation). C.R.S. § 8-13.3-403(4), except if a public health emergency is declared after an employee uses some or all available PTO for the applicable benefit year, the employer must supplement the employee's current total of accrued, unused leave pursuant to Rule 3.5.1(C).

3.5.5 Notice by employees of HFWA-qualifying leave.
(A) An employee may request leave orally or in writing, including electronically (for example, by email or text message). An employer may choose additional methods of receiving requests or notifications that it deems acceptable, but shall not restrict employees from using any method that notifies the employer effectively. C.R.S. § 8-13.3-404(2).

(B) For HFWA leave for any health-related or safety-related reason within C.R.S. § 8-13.3-404, if the employee's need for leave is "foreseeable," (1) an employee shall make a good-faith effort to provide advance notice and a reasonable effort to schedule the leave in a manner that does not unduly disrupt employer operations, and (2) an employer may by written policy require reasonable procedures to provide notice of foreseeable leave, but shall not deny paid sick leave based on noncompliance with such a policy. C.R.S. § 8-13.3-404(2),(5).

(C) For HFWA leave that is "related to public health emergency" under C.R.S. § 8-13.3-405(3): An employee shall notify their employer of their need for leave as soon as practicable if (1) the need for leave is foreseeable and (2) the employer's place of business is not closed. C.R.S. § 8-13.3-405(4).

3.5.6 An employer may require "reasonable documentation" that leave is for a HFWA-qualifying purpose only if the leave requested or taken is for "four or more consecutive work days," C.R.S. § 8-13.3-404(6), defined as four consecutive days on which the employee would have ordinarily worked absent the leave-qualifying condition, not four consecutive calendar days. An employer may not require an employee to provide documentation that leave is for a qualifying reason "related to [a] public health emergency" under C.R.S. § 8-13.3-405(3),(4).
(A) When documentation is required, an employer may request only "reasonable" documentation, which is defined as not more documentation than needed to show a HFWA-qualifying reason for leave, as described in subparts (B), (C), and (D) below, and an employer shall not require disclosure of "details" regarding the employee's or family member's "health information" or the "domestic violence, sexual assault, or stalking" that is the basis for HFWA leave (C.R.S. § 8-13.3-412(1)).

(B) To document leave for a health-related need under C.R.S. § 8-13.3-404(1)(a), (b):
(1) If the employee received any services (including remote services) from a health or social services provider for the HFWA-qualifying condition or need, a document from that provider, indicating a HFWA-qualifying purpose for the leave, will suffice.

(2) An employee who did not receive services from a provider for the HFWA-qualifying leave, or who cannot obtain a document from their provider in reasonable time or without added expense, can provide their own writing indicating that they took leave for a HFWA-qualifying purpose.

(C) To document leave for a safety-related need covered by C.R.S. § 8-13.3-404(1)(c) (i.e., domestic abuse, sexual assault, or criminal harassment): A document under subpart (B)(1) (from a health provider or a non-health provider of legal services, shelter services, social work, or other similar services) or an employee writing under (B)(2) will suffice, as will a legal document indicating a safety need that was the reason for the leave (e.g., a restraining order, other court order, or police report).

(D) Submission of documentation to an employer may be provided (1) by any reasonable method, including but not limited to electronic transmission, (2) at any time until whichever is sooner of an employee's return from leave (or termination of employment, if the employee does not return), (3) without a requirement of the employee's signature, notarization, or any other particular document format.

(E) Confidentiality of leave-related information and documentation. Any information an employer possesses regarding the health of an employee or the employee's family member, or regarding domestic abuse, sexual assault, or criminal harassment affecting an employee or employee's family member, shall be treated as confidential and may not be disclosed to any other individual except the affected employee, unless the affected employee provides written permission prior to such disclosure. C.R.S. § 8-13.3-412(2)(c). If the information is in writing, it shall be maintained on a separate form and in a separate file from other personnel information, and shall be treated as a confidential medical record by the employer. C.R.S. § 8-13.3-412(2)(a) -(b).

(F) If an employer reasonably deems an employee's documentation deficient, without imposing a requirement of providing more documentation than HFWA or applicable rules permit, prior to denying leave, the employer must:
(1) notify the employee within seven days of either receiving the documentation or the employee's return to work (or termination of employment, if the employee does not return), and

(2) provide the employee the minimum of seven days to cure the deficiency after the employee is notified that the employer deems the existing documentation inadequate.

3.5.7 Employer records of accrued and used paid leave hours. An employer "shall retain records for each employee for a two-year period, documenting hours worked, paid sick leave accrued, and paid sick leave used" (C.R.S. § 8-13.3-409(1)), except that two-year limit does not diminish the obligation to retain pay statement records for three years (C.R.S. § 8-4-103 (4.5)). Upon an employee's request, an employer must provide, in writing or electronically, documents sufficient to show, or a dated statement containing, the then-current amount of paid leave the employee has (1) available for use, and (2) already used during the current benefit year, including information as to any accrued leave provided and used subject to C.R.S. § 8-13.3-403 and any supplemental public health emergency-related leave provided and used subject to C.R.S. § 8-13.3-405(3). Employees may make such requests no more than once per month, except they may make an additional request when any need for HFWA leave arises. Employers may choose a reasonable system for fulfilling such requests, including but not limited to listing such information on each pay stub, using an electronic system where employees can access their own information, or providing the necessary information in a letter or electronic communication.

3.5.8 Collective bargaining agreements that provide for equivalent or more generous paid sick leave.
(A) If a bona fide collective bargaining agreement ("CBA") "provides for equivalent or more generous paid sick leave for the employees covered" (C.R.S. § 8-13.3-415(2),(3)), then:
(1) HFWA does not apply additional requirements (e.g. it does not require an additional 48 hours of leave when a CBA provides the same amount of leave); and

(2) HFWA does not invalidate the CBA or require its re-opening.

(B) A CBA "provides for equivalent or more generous paid sick leave" (C.R.S. §§ 8-13.3-415(2),(3)) if the CBA does not diminish any employee protections under HFWA and rules promulgated thereunder, including but not limited to the requirements in Rule 3.5.4(A) and:
(1) accrual and carryover;

(2) use and its conditions (e.g., documentation and notice to employers); and

(3) protection and effectuation of paid sick leave rights through notice to employees and prohibitions against retaliation based on, or interference with, protected activity.

(C) This Rule applies to a CBA that is either:
(1) "in effect on the effective date" of HFWA, July 14, 2020; or

(2) "initially negotiated or negotiated for the next collective bargaining agreement after th[at] effective date . . . if the requirements of this Part 4 are expressly waived in the [CBA]." (C.R.S. §§ 8-13.3-415(2),(3).)

Disclaimer: These regulations may not be the most recent version. Colorado may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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