7 CCR 1107-8.5 - Investigations

1. The Division has the authority and discretion to initiate investigations, audits, or any other compliance oversight activities upon its own initiative or upon the receipt of a complaint filed by an aggrieved party or their authorized representative.

2. Investigations initiated by the FAMLI Division may include potential violations of the FAMLI Act and its implementing regulations by any person, entity, or private plan.

3. The Division may utilize the following as part of an investigation:

A. Interviews of parties or witnesses;

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

C. Any other lawful techniques that enable the Division to assess compliance with the FAMLI Act and its implementing regulations.

4. Whenever the Division initiates an investigation, it shall send a Notice of Investigation to the subject of an investigation at their correct address.

5. The subject of an investigation may designate an authorized representative to represent it during the investigation.

6. Upon the receipt of a Notice of Investigation, the subject of an investigation or the subject's representative must submit a complete response to the Notice of Investigation within fourteen (14) calendar days of the date of the notice. The Division may extend the deadline upon a showing by the subject or their representative of good cause.

7. Whenever a complaint or investigation arising under the Act or its implementing regulations is filed or commenced, the subject or 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 complaints arising under C.R.S. § 8-13.3-509, relevant "personnel records" include but are not limited to:

A. Records related to paid family and medical leave insurance benefits;

B. Records related to other benefits that relate to, impact, or are impacted by paid family and medical leave insurance benefits;

C. Requests or statements by the person that are claimed to be protected activity;

D. Responses to, or analyses of, such request(s) or statement(s); and

E. Policies or decisions, formal or informal, that may apply to such request(s) or statements(s).

8. If the Division does not determine that a violation of the FAMLI Act or its implementing regulations occurred, the Division shall issue a Notice of Investigation Termination.

9. Complaints shall be assigned to a Division investigator.

10. Investigations into complaints arising under C.R.S. § 8-13.3-509 shall include a thorough review of the circumstances under which the alleged violations occurred and any policies and/or practices that may appear to constitute retaliatory personnel action, even though they have not been expressly cited by the Complainant.

11. At the commencement of an investigation into a complaint alleging violations of C.R.S. § 8-13.3-509, the Division will send a Notice of Complaint to the Respondent at the Respondent's correct address. A Respondent must respond within thirty (30) days after a complaint is sent to them, unless an extension is granted for good cause. An incomplete response may be considered a failure to respond.

A. If the Notice of Complaint cannot be delivered, a Division investigation cannot be commenced. If a correct address is located or provided, the Division will resend the Notice of Complaint, and the Respondent's deadline to respond will be calculated from the date of the subsequent notice.

B. If the Division cannot determine the Respondent's correct address, it may contact the Complainant to request the Respondent's correct address. The Division may dismiss the complaint without prejudice if neither the Complainant nor the Division can determine the Respondent's correct address.

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

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

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.

12. Upon receipt of the Respondent's response, the Division shall review all of the documentation received.

13. Subject to the approval of the Division, complaints arising under C.R.S. § 8-13.3-509 may be amended under certain circumstances. Amendments to the complaints may include but are not limited to: amendments to cure technical defects and errors or omissions, including failure to sign a complaint; to clarify or amplify the allegations therein; or to allege additional violations arising from the subject matter of the original complaint. Amendments related to or growing out of the subject matter of the original complaint will relate back to the date the complaint was first filed.

14. Amendments shall be filed in the same manner as provided by these Rules for the filing of the original complaint.

15. The Division may exercise its discretion to consolidate complaints, or 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.

16. An aggrieved party under C.R.S. § 8-13.3-509 may withdraw the complaint, or their participation in the complaint filed on their behalf, at any time prior to the issuance of a determination by notifying the Division in writing.

17. Upon conclusion of an investigation, the Division will issue and deliver to the parties a written determination with appeal rights or a notice of dismissal. A complainant may not withdraw a complaint once a determination has been issued by the Division.

18. The Division shall keep a full and complete record of all proceedings in connection with any investigation.

Notes

7 CCR 1107-8.5

46 CR 12, June 25, 2023, effective 7/15/2023 46 CR 23, December 10, 2023, effective 1/1/2024