7 CCR 1107-8
DEPARTMENT OF LABOR AND EMPLOYMENT REGULATIONS CONCERNING INVESTIGATIONS 7 CCR 1107-8 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________
8.1 Statement of Authority, Purpose, and Incorporation by Reference
1. This regulation is adopted pursuant to the authority in section C.R.S. § 8-13.3-501 et seq., and is intended to be consistent with the requirements of the State Administrative Procedures Act, C.R.S. § 24-4-101 et seq. (the “APA”), and the Paid Family and Medical Leave Insurance Act, C.R.S. § 8-13.3-501 through 524 (the “FAMLI Act”).
2. The general purpose of these rules is to exercise the authority of this Division to enforce and implement the Paid Family and Medical Leave Insurance Act (C.R.S. § 8-13.3-501 et seq.) with regard to investigating and making determinations for violations of the FAMLI Act and its implementing regulations.
3. If any part of these rules is held invalid, the remainder shall remain valid, and if any part is held not wholly invalid, but in need of narrowing, it will be retained in narrowed form.
8.2 Definitions and Clarifications
1. “Aggrieved party” means a person who alleges that their rights under the FAMLI Act or its implementing regulations have been violated.
2. “Authorized representative” means a person designated by a party to an agency action or investigation to represent the party during any Division proceeding, including an investigation, hearing, or appeal. An authorized representative may be, but does not have to be, an attorney. To designate or change an authorized representative, the party must comply with the requirements of Section 8.3.8.
3. “Certified copy” means a copy of a final division decision (issued by a Division investigator or hearing officer) signed by the director of the division, or his or her designee, certifying that the document is a true and accurate copy of the final decision. A Division decision (issued by a Division investigator or hearing officer) will not be certified unless: either (1) all appeal deadlines have passed and no appeal has been filed or (2) if an appeal was timely filed, the decision was not superseded on appeal.
4. “Charging Party” means an aggrieved party who files a complaint alleging violations arising under C.R.S. § 8-13.3-509.
5. “Complaint” means the official form submitted to the FAMLI Division by a named aggrieved party alleging a violation of C.R.S. § 8-13.3-509.
6. “Correct address” can include, but is not limited to, an email address reported to the Division or posted on a party’s website, an address on file with the Colorado Secretary of State, the address of a registered agent on file with the Colorado Secretary of State, or an address provided to the Division by the party. “Correct address” includes the My FAMLI+ portal, the My FAMLI+ Employer portal, and any contact information provided to the Division through that portal. Individuals may contact the Division via telephone to ensure contact information is correct. A notice is deemed sent to a party when placed in the U.S. mail, sent by electronic means, personally delivered to a party or a party’s representative, or personally delivered to a party’s correct address.
7. “Determination” has the same meaning as defined in 7 CCR 1107-9, Section 9.2.8.
8. “Determination letter” means a letter detailing a decision by a Division compliance investigator upon the conclusion of an investigation.
9. “Good cause” has the same meaning as 7 CCR 1107-3, Section 3.2.11.
10. “Investigator” means a member of the Division staff tasked with the collection and discovery of factual information concerning the potential violations of the FAMLI Act and its implementing regulations. Investigators may also prepare determinations or dismissals arising out of an investigation.
11. “Motivating factor” means a standard that requires the Charging Party to show that the protected activity engaged in under the FAMLI Act and its implementing regulations was a motivating factor in the employer's adverse action. This does not mean it was the sole factor, but it must be one of the factors that influenced the Respondent’s decision to take adverse action. This legal standard is applicable in cases where the Charging Party claims that FAMLI was one of the reasons for the Respondent’s adverse action. Even if other legitimate reasons were also present, as long as protected activity under the FAMLI Act and its implementing regulations was a motivating factor, the Respondent could be found in violation of the law.
12. “Notice of Dismissal” under this Section means a written notification provided to a Charging Party and Respondent by the Division dismissing the complaint in part or in its entirety. A Notice of Dismissal may be issued at any time during the proceedings.
13. “Notice of Investigation” means a notice to an employer that identifies potential violations under investigation and includes an initial request for documentation and records.
14. “Notice of Investigation Termination” means a notice to an employer that no further action is contemplated by the Division regarding the potential violations described in the Notice of Investigation.
15. “Other protected party,” as to the rights and responsibilities under the FAMLI Act, means a person who has, or is perceived as having, any relationship protected against retaliation under the FAMLI Act, including but not limited to:
A. a “family member” of an employee, as defined at C.R.S. § 8-13.3-503(11).
B. a “workplace relationship” with a covered employee which encompasses any person with whom the employee has interacted repeatedly in the scope of their employment, regardless of the person’s employer or employment status.
16. “Party” has the same meaning as 7 CCR 1107-9, Section 9.2.15.
17. “Position Statement” means a responsive statement to the Division that addresses all of the allegations in a Charging Party’s Complaint, provides relevant evidence to support the Respondent's position, and asserts any defenses that the Respondent believes are applicable and can help the Division accelerate the investigation and tailor its requests for additional information.
18. “Respondent” means an individual or entity against whom a complaint has been filed.
19. “Subject of an investigation'' means an individual or entity whose conduct has given rise to a Division-initiated investigation of potential violations of the FAMLI Act and its implementing regulations.
20. Except where explicitly provided by the FAMLI Act or its implementing regulations, these rules do not apply to local governments that have declined participation in the FAMLI program.
8.3 Filing a Complaint
1. Any person who alleges that their rights under the FAMLI Act or its implementing regulations have been violated may file a complaint with the Division by using the Division-approved form(s). The Charging Party shall comply with any other Division instructions as to information or submissions required by the Division.
2. If the Division receives written communication from a person alleging a violation of the FAMLI Act or its implementing regulations, and the contents of the communication suggest that the person would like the Division to initiate an investigation, the Division will send the person a complaint form and invite them to complete and return the complaint form. If the person returns a completed complaint form within thirty-five (35) days after the Division sends it, the complaint will be deemed to have been received on the date of the initial written communication. If the person returns a completed complaint form later than thirty-five (35) days after the Division sends it, the complaint will be deemed to have been received on the date the Division receives the completed complaint form.
3. A complaint shall include the Charging Party’s signature and contact information, Respondent’s contact information, and basis for the complaint. Failure to comply with this Rule may result in dismissal of the complaint without prejudice. Anonymous complaints will be accepted; however, the Division may choose to independently address anonymous complaints at its discretion. An anonymous complaint does not need to contain the complaining person’s contact information or signature.
4. The failure of a Charging Party to respond in a timely manner to informational or investigatory requests by the Division may result in dismissal of the complaint without prejudice. If the Division issues a Notice of Dismissal for failure to comply with this Rule, and the Charging Party provides the information within thirty-five (35) days of receipt of the notice, the Division may at its discretion reopen the complaint. A Charging Party may be required to file a new complaint if the Division receives their response more than thirty-five (35) days after the Division’s request for information. Nothing in this subsection shall be construed to extend the deadlines described at C.R.S. § 8- 13.3-509(6)(c)-(d).
5. A Charging Party under this section may pursue relief for any violation arising under C.R.S. § 8- 13.3-509 through either the court system or the Division’s established procedures and processes.
6. Aggrieved parties under C.R.S. § 8-13.3-509 are not required to first pursue the Division’s administrative remedies prior to initiating a lawsuit in the court system.
7. The Division does not have jurisdiction over any violation arising under this section that has been adjudicated or is currently being adjudicated by the court system or by another government administrative body. If the Charging Party files a civil action in a court of competent jurisdiction against an employer or any other individual or entity named as a Respondent to a pending complaint before the Division, and one or more of the alleged violations arise from the same facts or issues in both the civil action complaint and the Charging Party’s Division complaint, the Division will dismiss the complaint pending before the Division in part or in its entirety. 8 Any party to a complaint may designate an authorized representative to represent the party during the Division’s investigative, enforcement, and/or appeals process.
A. The party may designate an authorized representative by filing the Division-approved form with the Division.
B. The party may revoke the authorized representative’s authority by contacting the Division in writing.
9. In any Division investigation, proceeding, or other action initiated for a reason other than the receipt of a named complaint, 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.
10. Within ninety (90) days of a complaint being filed (or within ninety (90) days of the effective date of these Rules, whichever is later), the Division will assess whether it will exercise its discretion to either investigate or dismiss the complaint. The Division will inform the parties of its decision in writing.
8.4 Filing, Notification, and Deadlines
1. A complaint to the Division is considered “filed” with the Division when it is sent via mail or online submission. Complaints shall be filed within the time limits specified by the Act and its implementing regulations. If the last date upon which a timely complaint may be filed falls upon a Saturday, Sunday, or State of Colorado legal holiday, the complaint shall be deemed timely if filed with the Division on the next regular business day. Any complaint received after 11:59 p.m. Mountain Standard Time is considered filed the next business day.
2. A complaint to the Division is considered “signed,” or to have a “signature,” if it has either an ink signature, a scanned signature, an electronically drawn or generated signature, a mark, or a typed name entered by the Charging Party in the signature area. By signing in any such fashion, the person is deemed to have agreed and assented that the document is signed by them.
3. Deadlines in these Rules may be extended a maximum of ninety [90] days for good cause.
8.5 Investigations
1. Generally A. The Division has the authority and discretion to initiate investigations, audits, or any other compliance oversight activities related to any provision of the FAMLI Act and its implementing regulations upon its own initiative or upon the receipt of a complaint filed by an aggrieved party or their authorized representative. Nothing in the FAMLI Act or its implementing regulations limits the Division’s authority to conduct pre-investigation fact- finding, facilitate settlements, or make referrals to other criminal or civil enforcement agencies.
B. 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.
C. The Division may utilize the following as part of an investigation:
D. Upon receipt of a Notice of Complaint or Notice of Investigation, the subject or 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:
E. All parties to an investigation are responsible for ensuring the Division has current contact information.
F. 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.
2. Investigations Initiated by the Division A. Whenever the Division initiates an investigation, it shall send a Notice of Investigation to the subject of an investigation at their correct address.
B. The subject of an investigation may designate an authorized representative to represent it during the investigation.
C. 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.
D. The Division may issue a determination in favor of the charging party if it determines that a violation of the FAMLI Act or its implementing regulations occurred. If the employer does not respond to the Notice of Investigation, then the Division may rely on any available, undisputed evidence.
E. If the Division initiates an investigation, then it will end the investigation by issuing either a determination or a Notice of Investigation Termination.
3. Investigations Initiated by a Job Protection & Retaliation Complaint Form A. 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 or interference with the Charging Party’s rights under the FAMLI Act and its implementing regulations, even though they may not have not been expressly cited by the Charging Party in their Complaint.
B. Anytime the Division selects a Complaint for investigation, and prior to the commencement of an investigation into a complaint, the Division will send a Notice of Complaint to the Respondent at the Respondent’s correct address. The Notice of Complaint will include a citation to each potential violation of the FAMLI Act and its implementing regulations. The Charging Party’s complaint and non-confidential attachments will be provided with the Notice of Complaint. A Respondent must provide a Position Statement responding to the allegations contained within the Charging Party’s complaint within thirty (30) days after a complaint is sent to them, unless an extension is granted for good cause.
C. Failure to respond to the Division’s request for a Position Statement may result in a default judgment in favor of the Charging Party based solely on the undisputed allegations set forth in the Complaint.
D. Upon receipt of the Respondent’s Position Statement, the Division shall review all of the documentation received. The Division will provide the Charging Party with a copy of the Position Statement and all evidence submitted in support thereof, unless information provided by the Respondent has been designated as confidential. The position statement itself cannot be marked as confidential in its entirety. It is the responsibility of the Respondent to ensure appropriate redactions and designations are made to the position statement before submission. The Division will review these attachments marked as confidential and assess the provided justification, as blanket or unsupported claims of confidentiality will not be accepted.
E. A Charging Party may provide a rebuttal disputing the Respondent’s position within fourteen (14) days of the date the Division sent the Position Statement to the Charging Party. The Division may extend the deadline for good cause.
F. 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. If the Division uncovers additional potential violations during the course of a retaliation and interference investigation, it may unilaterally amend the complaint and add the additional violations to the investigation.
G. Amendments shall be filed in the same manner as provided by these Rules for the filing of the original complaint. If a complaint is amended, the Division will send a revised Notice of Complaint to the Respondent, and the Respondent must provide a Position Statement responding to the additional allegations contained within the amended complaint within thirty (30) days after the amended complaint is sent to them, unless an extension is granted for good cause.
H. 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.
I. Complaints arising under C.R.S. § 8-13.3-509 may be settled at any time during the investigation. Any settlement reached shall be in writing and signed by both parties and shall identify the claims resolved.
J. Upon conclusion of an investigation under C.R.S. § 8-13.3-509, the Division will issue and deliver to the parties a written determination with appeal rights or a notice of dismissal. A Charging Party may not withdraw a complaint once a determination has been issued by the Division. A Notice of Dismissal is not a determination and does not prohibit a Charging Party from filing a civil complaint in a court of competent jurisdiction.
K. The Division shall keep a full and complete record of all proceedings in connection with any investigation for six (6) years after the completion of the investigation.
8.6 Burdens of Proof
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 Charging Party 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 7.2.6.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 Charging Party proves unlawful retaliation or discrimination was a motivating factor for the complained-of practice, then a violation is proven. If the Charging Party cannot demonstrate that unlawful retaliation or discrimination was a motivating factor for the complained-of practice, then a violation has not been proven. However, if a violation is proven but the Respondent proves by a preponderance of the evidence 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.
C. In determining whether a violation occurred or whether the complained-of practice would have occurred for another lawful reason, evidence the Division may consider includes, but is not limited to:
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 Charging Party 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 Charging Party 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 Charging Party meets its burden of proof, then a violation is proven. However, if a violation is proven but the Respondent proves by a preponderance of the evidence 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.
8.7 Remedies
1. Upon conclusion of an investigation, the Division will issue and deliver to the parties a written determination or a notice of dismissal.
2. Determinations issued by the Division may include the following remedies, depending on which, if any, the Division’s findings support:
A. Monetary or other relief authorized by the FAMLI Act or its implementing regulations, including any remedies under C.R.S. § 8-13.3-509(6)(b)-(7);
B. An assessment of an amount owed (fines and interest); and/or C. Orders to cease non-compliance, effectuate compliance, and/or otherwise redress direct or indirect consequences of violations of the FAMLI Act.
3. For the purpose of determining damages pursuant to C.R.S. § 8-13.3-509(6)(b), the value of paid family and medical leave benefits that an individual was unable to access because of unlawful retaliation or interference is considered other compensation denied or lost to the individual by reason of the violation.
4. For any monetary award imposed under these rules, the Division shall issue a determination and Notice of Assessment and Requirement to Report Payments Made which will include:
A. Total damages owed to the Charging Party with calculations and a narrative explaining the Division’s justifications for an award of damages;
B. Total fines owed to the Division and the relevant statutory or regulatory citations;
C. Total interest owed, including a description of the calculation and citations to the relevant statute and/or regulations.
D. Instructions for remittance of payment to the Charging Party and/or Division;
E. Instructions for the reporting to the Division payments made to the Charging Party; and F. Deadlines to remit payment to the Charging Party and/or Division.
5. The person awarded relief or remedies under this section shall be issued a certified copy of the final Division decision imposing relief or remedies, signed by the Director of the Division, or their designee, certifying that the document is a true and accurate copy of the final decision. The person awarded relief or remedies may file the certified copy with the clerk of a court having jurisdiction over the parties, and such a filing will thereby have the effect of a judgment from which execution may be issued. Where practicable, the Division shall make reasonable efforts to assist in the filing of the certified copy.
6. An aggrieved party is not entitled to appeal a determination of the Division to a court of competent jurisdiction until the aggrieved party has exhausted all administrative remedies, including appeal to a Division hearing officer.
8.8 Recovery
1. Any outstanding amount owed to the Division as determined by a final agency action may be collected by the Division through any and all legal means available, including, but not limited to benefit offsets, garnishments, liens, or the Federal Treasury Offset Program.
2. The Division may share information with other criminal or civil enforcement authorities if it believes that a violation implicating their enforcement authority has occurred. However, the Division will not voluntarily provide any person or entity information concerning immigration status.
8.9 Interest
Any outstanding balance past due shall accrue interest at the rate allowed pursuant to C.R.S. § 5-12-102, until payment is received in full.
8.10 Determinations
1. What constitutes a “Determination” is defined in 7 CCR 1107-9, and includes determinations pursuant to the FAMLI Act or any of its implementing regulations.
2. The Division will issue and deliver determinations by U.S. first class mail or electronically to the parties at their correct addresses and include a statement regarding appeal rights.
3. The date of issuance of the Division's determination is the date the Division's determination is sent to the parties by mail or electronically to the parties, as indicated in the determination. Any reconsideration or appeal deadlines are calculated from the Division's date of issuance.
4. Determinations shall be deemed final, and any information contained in any document or notice issued by the Division shall be deemed correct unless a party requests a reconsideration, the Division issues a reconsideration on its own volition, or a party files a timely request for appeal according to these regulations.
5. No party can appeal a Division decision to a Division hearing officer unless the decision constitutes a determination. No party can appeal a determination of the Division to a court of competent jurisdiction until such party has exhausted all administrative remedies provided in these rules, including appeal to a Division hearing officer.
6. Determinations must include some explanation of the facts forming the basis for the determination, citation to relevant provisions of the law, and the date the determination was issued and a notice of appeal rights.
8.11 Language Accessibility
The Division will make reasonable efforts to make forms and communications under these rules available in an individual’s primary language, subject to the Division’s sole discretion based on available resources. _________________________________________________________________________ Editor’s Notes History New rule eff. 07/15/2023.
Entire rule eff. 01/01/2024.
Entire rule eff. 01/01/2025.
Rules 8.1 3, 8.2 5, 8.2 12, 8.3 7, 8.5 3.F-G, 8.6 2.A, 8.7 3-6 eff. 07/01/2025. Rules 8.1 3, 8.2 6, 8.7 3 eff. 01/01/2026.