7 CCR 1103-7-4 - Investigation and Mediation
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.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
4.1 Wage complaints shall be assigned to Division compliance investigators. 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 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, the administrative procedure has not been initiated. If a proper address is located or provided, the Division will resend the Notice of Complaint, and the employer's deadline to respond will be calculated from the date of the subsequent notice.
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 fourteen 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 Division investigation, proceeding, or other action, if information is provided to the Division by a source requesting confidentiality, and that information is used only as a basis for procuring other evidence, not offered as evidence itself, then the source shall remain confidential. 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);
(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 wage rights and responsibilities, including the right to access paid leave without retaliation or interference under HFWA, and the Division shall assure that wage 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 wage and hour law rights, responsibilities, or proceedings of any person or entity is an unlawful act of obstruction, retaliation, and/or extortion, based on statutory 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 "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);
(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).