7 CCR 1103-7-9 - [Effective 4/1/2024] Wage Theft Enforcement Fund

9.1 When the Division, pursuant to C.R.S. § 8-4-111(2)(c), or a hearing officer, pursuant to C.R.S. § 8-4-111.5, determines that an employer owes wages or compensation to an employee, if the employer fails to pay an employee the determined amount of wages or compensation owed the employee within six months after the Division's determination, or hearing officer's decision, or the expiration of any order from the Division, the hearing officer, or a court staying or postponing the employer's payment obligation, whichever is later, the Division may disburse payment for unpaid liabilities for wage law violations determined to be owed the employee from the wage theft enforcement fund (the "fund") to the employee.

(A) Any disbursement from the fund shall be subject to the Division's prioritization and the available resources in the fund.

(B) Pursuant to C.R.S. § 8-4-113(3)(a), (c)(II), and 5(a), the Division may disburse amounts from the fund to make payments to employees for part or all of the unpaid liabilities for wage law violations, which include the amount of wages or compensation, with the statutorily mandated penalty multipliers of those wages or compensation, determined to be owed to an employee.

(C) The Division may, based both on its own discretion and its consideration of the criteria identified in Rule 9.3, make a disbursement from the fund to an employee to pay unpaid liabilities for wage law violations owed to the employee without receiving an employee's request for such disbursement.

9.2 After six months following the Division determination or hearing officer decision that an employer owes wages or compensation to an employee, or the expiration of any order from the Division, a hearing officer, or a court staying or postponing the employer's payment obligation, whichever is later, if the employer has still failed to pay the determined wages or compensation or penalties owed the employee, the employee may submit a written request seeking payment from the fund pursuant to C.R.S. § 8-4-113(5) ("fund request").

9.2.1 An employee who submits a fund request to the Division must comply with orders and instructions posted or otherwise provided by the Division:

(A) as to the method and timeframe to submit a fund request; and

(B) requiring information on any relevant matters, including but not limited to the determination or decision awarding relief, any collections efforts by or for the employee, and any up to date personal information from the employee.

9.2.2 The Division will inform the employee in writing (e.g., letter or electronic communication) as to its decision on the fund request. If the Division determines that it will not grant a fund request, it may, in its discretion, inform the employee that it will retain the request on file for future consideration, without need for a further submission by the employee.

9.2.3 If, pursuant to an employee's fund request, the Division determines that it will disburse from the fund any amounts related to the unpaid liabilities for wage law violations described in the employee's fund request ("disbursement amount"), the Division:

(A) shall notify the employee in writing (e.g., letter or electronic communication) of the payment to the employee ("fund payment");

(B) may inform the employee that such fund payment may be conditioned on confirmation of the employee's current contact information and/or preferred method of payment;

(C) may require the employee to sign an acknowledgement of the following conditions prior to issuing any payment to the employee -

(1) once the employee has deposited or cashed the fund payment, they may not recover payment in the disbursement amount from the employer;

(2) the Division replaces the employee as the creditor of the employer for the disbursement amount;

(3) the Division shall credit any payment it obtains from the employer toward the disbursement amount to the fund; and

(4) if the employee does not deposit or cash the fund payment within three months of transmission, the Division may cancel the fund payment.

(D) shall, upon Division confirmation of both reliable payment transmission information and compliance with all requirements, transmit payment to the employee.

9.2.4 Nothing in Rule 9.2 shall be construed to reduce or otherwise alter the amount of an employer's or other Division debtor's unpaid liabilities for wage law violations based on a fund payment.

9.2.5 Pursuant to C.R.S. § 8-4-113(5)(a), because the Division's authority to disburse payments from the fund is a discretionary use of Division funds, an employee cannot appeal any Division determination concerning a fund request.

9.3 The Division shall review, evaluate, and resolve an employee's fund request based on the following criteria, to the extent that any or all are appropriate and relevant to a particular request:

(A) enforcement priorities of the Division;

(B) available resources in the fund;

(C) length of time that the unpaid liabilities for wage law violations have been outstanding;

(D) the employee's degree of need for payment from the fund;

(E) the employer's prospects of paying their debt, including any risk of asset depletion;

(F) the employer's degree of compliance or non-compliance in relation to

either the employee, other employees, or the Division;

(G) the extent of any past, current, or impending collection efforts by the employee or the Division; and

(H) any other considerations relevant to the merits of the fund request.

Notes

7 CCR 1103-7-9

47 CR 05, March 10, 2024, effective 4/1/2024