7 CCR 1103-11-3 - Complaint, Investigation, and Appeal Procedures

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.

Notes

7 CCR 1103-11-3

43 CR 20, October 25, 2020, effective 9/21/2020 43 CR 23, December 10, 2020, effective 1/1/2021 45 CR 03, February 10, 2022, effective 3/2/2022 45 CR 23, December 10, 2022, effective 1/1/2023