Current through Register Vol. 47, No. 17, September 10, 2024
1. The party
seeking an award of benefits or damages, the imposition of a fine, penalty, fee
or interest, or any other relief, has the burden of proof to show the relief
should be granted by a preponderance of the evidence. Where the Division proves
the grounds for imposing fines, penalties, or fees, the amount of such fines,
penalties, or fees shall be overturned or modified only if the employer or
private plan proves that the Division abused its discretion.
2. Complaints alleging retaliatory personnel
action under C.R.S. §
8-13.3-509 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 an unlawful retaliatory
personnel action 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 employer takes an adverse employment action, as
described in 7 CCR 1107-7, Section 7.2.5.B, against an employee who engaged in
protected activity or an other protected party within ninety (90) days of the
employee engaging in protected activity, such adverse employment action creates
a rebuttable presumption of retaliation.
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 any damages as of the
date the practice would have occurred.
3. Complaints alleging interference under
C.R.S. §
8-13.3-509 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 occurred.
The Respondent must explain which, if any, allegations it disputes. Any
evidence probative of a relevant issue may be submitted or considered.
Interference is established when a Complainant shows the Respondent engaged in
conduct that tends to or does result in at least slight harm to rights
guaranteed by the FAMLI Act.
B. If
the Complainant meets its burden of proof, then a violation is proven. However,
if a violation is proven but the Respondent demonstrates the violation resulted
from circumstances beyond its control and that no alternative course of action
was available, then the Division shall not award any
damages.
4.
Determinations must include a finding of fact on which the determination is
based, the relevant section or sections of the law, and the date the
determination was issued.
