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. Article 13.3, Title 8 (2023), Article 12, Title 5 (2023), and Article 4, Title 24 (2023), C.R.S., and 29 C.F.R. § 1602.14 (2023) are hereby incorporated by reference. Earlier versions of such laws may apply to events that occurred in prior years. Such incorporation excludes later amendments to or editions of the statutes. These statutes and regulations are available for public inspection at the Colorado Department of Labor and Employment, Division of Family and Medical Leave Insurance, 633 17th Street, Denver, CO 80202. Copies may be obtained from this Division at a reasonable charge, or can be accessed electronically from the website of the Colorado Secretary of State. Pursuant to C.R.S. § 24-4-103(12.5)(b), the agency shall provide certified copies of the statutes and regulations incorporated at cost upon request or shall provide the requestor with information on how to obtain a certified copy of the material incorporated by reference from the agency originally issuing the statutes. All Division Rules are available to the public at famli.colorado.gov. Where these Rules have provisions different from or contrary to any incorporated or referenced material, the provisions of these Rules govern so long as these are consistent with Colorado statutory and constitutional provisions.
4. 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. “Complainant” 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 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. 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 9.2.7.8-13.3-503(3).
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. “Notice of Dismissal” under this Section means a written notification provided to a Complainant and Respondent by the Division dismissing the complaint in its entirety. A Notice of Dismissal may be issued at any time during the proceedings.
12. “Notice of Investigation” means a notice to an employer that identifies potential violations under investigation and includes an initial request for documentation and records.
13. “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.
14. “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.
15. “Party” has the same meaning as 7 CCR 1107-9, Section 9.2.13.
16. “Respondent” means an individual or entity against whom a complaint has been filed.
17. “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.
18. 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 Complainant 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 Complainant’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 complainant 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 Complainant provides the information within thirty-five (35) days of receipt of the notice, the Division may at its discretion reopen the complaint. A claimant 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 Complainant 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 Complainant 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, the Division will dismiss the complaint pending before the Division. 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 received 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 Complainant 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. 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.
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.
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 Complainant 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 7.2.5.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 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 any damages as of the date the practice would have occurred.
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 Complainant 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 Complainant 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 Complainant meets its burden of proof, then a violation is proven. However, if a violation is proven but the Respondent demonstrates 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 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 Claimant;
B. Total fines owed to the Division;
C. Instructions for remittance of payment to the Complainant(s) and/or Division;
D. Instructions for the reporting to the Division payments made to the Complainant(s); and E. Deadlines to remit payment to the Complainant(s) and/or Division.
4. 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.
5. 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. § 5-12-101, until payment is received in full.
8.10 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.