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
4 - Investigation and Mediation

Universal Citation: 7 CO Code Regs 1103-7 ยง 4

Current through Register Vol. 47, No. 17, September 10, 2024

4.1 Wage complaints shall be assigned to Division investigative staff. Investigatory methods used by the Division may include:

(A) Interviews of the employer, employee, and other parties;

(B) Information gathering, fact-finding, and reviews of written submissions; and

(C) Any other lawful techniques that enable the Division to assess the employer's compliance.

4.2 The Division will evaluate wage complaints under the following burden of proof structure:

4.2.1 To initiate a wage complaint, an employee must provide an explanation of the basis for the complaint that is clear, specific, and shows the employee is entitled to relief. The employee must provide sufficient evidence from which both a violation of Colorado wage and hour laws and an estimate of wages due may be reasonably inferred.

4.2.2 The Division may investigate a wage complaint on behalf of a group of employees if (A) the claimant so requests and (B) it may be reasonably inferred that other employees are similarly situated. If the Division declines to investigate a wage complaint on behalf of a group of employees, it shall investigate on behalf of the individual claimant, and others similarly situated may consent in writing to participate as parties, pursuant to any Division instructions as to information or submissions required by the Division. Nothing in this Rule 4 limits the Division's authority for direct investigations under the Direct Investigations Rules, 7 CCR 1103-8.

4.2.3 The burden then shifts to the employer to prove, by a preponderance of the evidence, that the employee is not entitled to the claimed relief. If the employer fails to meet its burden, the Division may award wages and/or penalties to the employee based on the employee's evidence.

4.2.4 If the Division concludes that wages are owed to the employee, but cannot calculate the precise amount of wages due, then the Division may award a reasonable estimate of wages due.

4.3 Any party to a wage complaint may designate an authorized representative to represent the party during the Division's administrative procedure.

4.3.1 The party may designate an authorized representative by filing the Division-approved form with the Division.

4.3.2 If not using the Division-approved form, and the authorized representative is a licensed attorney or accountant, the party or the authorized representative must provide written notice to the Division that the authorized representative will represent the party during the Division's administrative procedure.

4.3.3 If not using the Division-approved form, and the authorized representative is not a licensed attorney or accountant, the party must provide a signed written notice to the Division that the authorized representative will represent the party during the Division's administrative procedure.

4.3.4 The party may revoke the authorized representative's authority by contacting the Division in writing.

4.4 After receipt of a wage complaint that states a claim for relief, the Division will initiate the administrative procedure by sending a Notice of Complaint to a correct address of the employer, along with any relevant supporting documentation submitted by the employee, via U.S. postal mail, electronic means, or personal delivery.

4.4.1 If the Notice of Complaint cannot be delivered, and is not otherwise served to or received by the employer, the administrative procedure has not been initiated, but the Division may resend the Notice of Complaint to a correct address, with the response deadline calculated from the date when that notice was sent. Any competent evidence may establish that a party was served; conclusive proof of service includes proof of delivery to any correct address as defined in Rule 2. Proper service is effective regardless of whether the party reads or opens the material served.

4.4.2 If the Division cannot determine the employer's correct address, it may contact the employee to request the employer's address. The Division may dismiss the wage complaint if neither the employee nor the Division can determine the employer's correct address.

4.4.3 The employer's response to the Notice of Complaint must include the completed Division Employer Response Form, as well as any additional information or documentation requested by the Division. An insufficient response from the employer may be considered a failure to respond under C.R.S. § 8-4-113(1)(b).

4.4.4 If an employer obtains a good cause extension to respond under C.R.S. § 8-4-113(1)(b), the extension does not waive or reduce penalties owed to the employee pursuant to C.R.S. § 8-4-109(3)(b) if the employer fails to pay the employee's wages within 14 days after the Notice of Complaint is sent.

4.4.5 Where a claim, complaint, or investigation for violation of these Rules or the statutes they enforce has been filed or commenced, the employer shall preserve all relevant documents until final disposition and until the expiration of the statutory period within which a person aggrieved may bring a civil action.

4.5 After receipt and review of the employer's response, the Division may contact the employee for additional documentation or information. If the employer denies, in whole or in part, the allegations in the Notice of Complaint, and the Division determines further investigation would be beneficial, the Division shall send to the employee any relevant supporting documentation submitted by the employer. If the employee does not respond to the request for additional documentation or information by the deadline given, the Division will make a determination based on the information in the record.

4.6 All parties to a wage complaint are responsible for ensuring the Division has current contact information.

4.6.1 All parties must promptly notify the Division of any change in contact information, including mailing address, email address, and phone number.

4.6.2 Parties should not rely on the U.S. Postal Service to forward mail. Failure to respond to a notice because mail was not forwarded to a new address will not be excused.

4.7 In any stage of any Division investigation, proceeding, or other action, if information is provided to the Division by a source requesting or otherwise warranting confidentiality, then the source shall remain confidential if that information is used:

(1) as a basis for procuring other evidence, not offered as evidence itself;

(2) as evidence of liability, but not to establish individual relief for the source of the information; or

(3) in other circumstances in which confidentiality is necessary and appropriate. Any such confidential source is unlawful to disclose (unless the source consents) in any administrative or judicial proceeding, in response to any records or information request, or in any other manner, in order to effectuate statutory requirements including but not limited to the following:
(A) If information is properly treated as confidential, the Division "shall provide a physical environment and establish policies and procedures to ensure confidentiality for all information regarding any employer, employee, or person pertaining to any action pursuant to articles 1 to 13" (C.R.S. § 8-1-115);

(B) "An employer shall not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate or retaliate against any employee who has:
(a) filed any complaint or instituted or caused to be instituted any proceeding under this article 4 or any other law or rule related to wages or hours; or

(b) testified or provided other evidence, or may testify or provide other evidence in any proceeding on behalf of the employee or another person regarding afforded protections under this article 4 or under any other law or rule related to wages or hours" (C.R.S. § 8-4-120(1));

(C) It is unlawful to "discharge[] or threaten[] to discharge, or in any other way discriminate[] against an employee" because s/he "may testify in any investigation or proceeding relative to enforcement of this article" (C.R.S. § 8-6-115); and

(D) It is unlawful to take adverse action based on "participat[in]g in an investigation, hearing, or proceeding or cooperat[ing] with or assist[ing] the Division in its investigations of alleged violations" of HFWA (C.R.S. §§ 8-13.3-402(10), -407).

4.8 Immigration status is irrelevant to labor rights and responsibilities, and the Division shall assure that labor rights and responsibilities apply regardless of immigration status, including but not limited to as follows.

4.8.1 The Division will not voluntarily provide any person or entity information concerning the immigration status of (a) a party to a wage claim, (b) a person offering information concerning a wage claim, or (c) a person with a relationship with anyone in categories (a) or (b).

4.8.2 Any effort to use a person's immigration status to negatively impact the labor law rights, responsibilities, or proceedings of any person or entity is an unlawful act of obstruction, retaliation, and/or extortion, based on statutory or rule provisions including but not limited to the following that make it unlawful:
(A) For "any person" to "hinder[] or obstruct[] the director or any such person authorized by the director in the exercise of any power conferred by this article[,]" including but not limited to wage investigations, rulemakings, or adjudicative or judicial proceedings (C.R.S. § 8-1-116(2));

(B) For an employer to discriminate or retaliate against a person for exercising labor rights, including but not limited to acts that "intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate or retaliate against any employee who has:
(a) filed any complaint or instituted or caused to be instituted any proceeding under this article 4 or any other law or rule related to wages or hours; or

(b) testified or provided other evidence, or may testify or provide other evidence, in any proceeding on behalf of himself, herself, or another regarding afforded protections under this article 4 or under any other law or rule related to wages or hours" (C.R.S. § 8-4-120(1));

(C) For any person to "threaten[] to report to law enforcement officials the immigration status of the threatened person or another person" to "induce another person" to give up money "or another item of value" (C.R.S. § 18-3-207 (1.5)), including inducing the surrender of any "tangible and intangible personal property, contract rights, choses in action, [or] services ..., and any rights of use or enjoyment connected therewith" (C.R.S. § 18-1-901); and

(D) For an employer to deny "any right guaranteed under" HFWA, or to take "any adverse action against an employee for exercising any right guaranteed" by HFWA (C.R.S. §§ 8-13.3-402(10), -407).

4.9 Mediation

4.9.1 The Division may invite or order parties to a complaint to meet to mediate or otherwise attempt to resolve the complaint at any stage of the administrative procedure or other applicable process.

4.9.2 No statements, actions, evidence, or other submissions during or for mediation shall be disclosed by any party or used as evidence in any subsequent proceeding unless the parties agree otherwise.

4.9.3 Upon request, parties shall provide the Division copies of settlement agreements entered through mediation or private settlement negotiation. To the extent that an agreement requires confidentiality, the Division shall, in conformity with the Colorado Dispute Resolution Act (C.R.S. § 13-22-301, et seq.) and other applicable law (e.g., C.R.S. § 8-1-115), maintain that confidentiality, subject to any legal restrictions on confidentiality.

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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