DEPARTMENT OF LABOR AND EMPLOYMENT WAGE PROTECTION ACT RULES 7 CCR 1103-7 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ Rule 1. Statement of Purpose and Authority 1.1 The general purpose of these Wage Protection Act Rules is to implement the Wage Protection Act of 2014. These rules are adopted pursuant to the division’s authority in C.R.S. § 8-1-103(3), § 8-1-107(2)(p), § 8-1-111, and § 8-4-101, et seq.

1.2 Title 8, Article 4 of the Colorado Revised Statutes (2016) is hereby incorporated by reference into this rule. Such incorporation excludes later amendments to or editions of the statutes. These statutes are available for public inspection at the Colorado Department of Labor and Employment, Division of Labor Standards & Statistics, 633 17th Street, Suite 600, Denver CO 80202. Copies may be obtained from the Division of Labor Standards & Statistics at a reasonable charge. These statutes 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 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.

1.3 These rules are severable. If any section, sentence, clause, or phrase of these rules, or any application thereof, is for any reason held to be invalid or unenforceable, that holding shall not affect the validity of the remaining rules.

1.4 The Director of the Division of Labor Standards and Statistics in the Department of Labor and Employment has the authority to enforce § 8-4-101, et seq. and these rules. Rule 2. Definitions and Clarifications 2.1 “Administrative procedure” means the process used by the division to investigate wage complaints in accordance with § 8-4-111.

2.2 “Authorized representative” means a person designated by a party to a wage complaint to represent the party during the division’s administrative procedure. To designate an authorized representative, the party must comply with the requirements of rule 4.3.

2.3 “Average daily earnings,” as used in § 8-4-109(3)(b), will be calculated as follows, unless the division identifies a legitimate reason to use a different method of calculation:

2.3.1 The most recent typical workweek or pay period will generally be used to calculate the average daily earnings. The total gross amount of wages and compensation will be divided by the number of days worked.

2.3.2 If an employee is entitled to and has been paid less than the Colorado minimum wage, and has not earned more than the Colorado minimum wage, then the Colorado minimum wage will be used to calculate average daily earnings.

2.3.3 All compensation paid to employees including the hourly rate, shift differential, minimum wage tip credit, regularly occurring non-discretionary bonuses, commissions, and overtime may be included in the average daily earnings calculation.

2.4 “Certified copy,” as used in § 8-4-113, means a copy of a final division decision (issued by a compliance 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 certified copy must be requested in writing. A division decision (issued by a compliance 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. A certified copy will not be issued in the event of termination pursuant to § 8-4-111(3).

2.5 “Determination” means a decision issued by a compliance investigator upon the conclusion of a wage complaint investigation. “Determination” includes: Citation and Notice of Assessment, Determination of Compliance, and Notice of Dismissal, if that Notice of Dismissal is issued after the Division initiated the administrative procedure as described in rule 4.4.

2.6 The “employer’s correct address,” as used in § 8-4-101(15), can include, but is not limited to, the employer’s email address, the employer’s address on file with the Colorado Secretary of State, and the address of the employer’s registered agent on file with the Colorado Secretary of State.

2.7 A wage complaint or an appeal is considered “filed” with the division when it is received by the division via mail, fax, email, online submission, or personal delivery. Any wage complaint, appeal, or termination received after 11:59pm Mountain Time is considered filed the next business day.

2.8 When considering whether there is “good cause” for an extension of time, as used in § 8-4- 113(1)(b), the division will determine whether the employer’s reason is substantial and reasonable and must take into account all available information and circumstances pertaining to the specific complaint.

2.9 “Post,” as used in § 8-4-107, may include electronic posting in a place readily accessible to all employees.

2.10 “Records reflecting the information contained in an employee’s itemized pay statement,” as used in § 8-4-103(4.5), may be kept electronically. The records are not required to be copies of the pay statements but must reflect all information contained in the pay statements.

2.11 “Terminated employee,” as used in § 8-4-105(1)(e), includes any employee separated from employment, whether the separation occurs by volition of the employer or the employee.

2.12 The division may enforce the tip provisions described in § 8-4-103(6) through the administrative procedure described in § 8-4-111.

2.13 § 8-4-103(1)(b) describes circumstances under which employers are “subject to the penalties specified in section 8-4-113(1).” Despite use of the word “penalty” in this section, this language does refer to the fine described in § 8-4-113(1) and is payable to the division.

2.14 A “written demand,” as used in § 8-4-101(15), can be sent to the employer by electronic means, including but not limited to email and text message. Wages must be owed at the time of sending for the written demand to be considered valid.

Rule 3. Filing A Wage Complaint 3.1 An employee who wishes to file a wage complaint with the division shall use the division- approved form(s).

3.1.1 A wage complaint may only be filed by the employee who did not receive his or her wages or compensation.

3.1.2 A wage complaint shall include the employee’s signature, employee’s contact information, employer’s contact information, and basis for the wage complaint. Failure to include this information on the wage complaint form may result in dismissal of the wage complaint.

3.1.3 The failure of an employee to respond in a timely manner to informational or investigatory requests by the division may result in dismissal of the wage complaint.

3.1.4 If a wage complaint is dismissed before a Notice of Complaint is sent to the employer because the employee failed to respond to a division request for information, the complaint may be reopened if the employee provides the requested information or documentation to the division within 35 days of the division’s request for information. Employees may be required to file a new complaint if the employee’s response is received more than 35 days after the division’s request for information.

3.1.5 The division shall not accept wage complaints for amounts exceeding $7,500.

3.1.6 An anonymous complaint is not a wage complaint within the meaning of § 8-4-111 and will not be investigated using the division’s administrative procedure. The division may choose to address an anonymous complaint outside of the administrative procedure.

3.2 An employee may pursue a wage complaint through either the court system or the division’s administrative procedure.

3.2.1 Employees are not required to use the division’s administrative procedure in order to pursue a wage complaint in court.

3.2.2 The division does not have jurisdiction over any wage complaint that has been adjudicated or is currently being adjudicated by a court of competent jurisdiction.

3.3 The employee may withdraw the wage complaint at any time prior to issuance of a determination by notifying the division.

Rule 4. Investigation 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 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.

4.2.3 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 § 8-4-113(1)(b).

4.4.4 If an employer obtains a good cause extension to respond under § 8-4-113(1)(b), the extension does not waive or reduce penalties owed to the employee pursuant to § 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.

4.5 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. Rule 5. Determination 5.1 Upon conclusion of the investigation of a wage complaint, the division will issue a determination.

5.1.1 The division shall send the determination to all parties via U.S. postal mail, electronic means, or personal delivery on the date the determination is issued by the division’s compliance investigator. The division shall notify the parties of their termination and any appeal rights pursuant to § 8-4-111(3) and § 8-4-111.5(1).

5.1.2 The date of “issuance” of the division’s determination, as used in § 8-4-111(3), is the date the division’s determination is “sent,” as used in § 8-4-111.5(1). Both the termination and appeal deadlines are calculated from the date the division’s determination is originally issued and sent to the parties.

5.1.3 If any copies of the decision are sent to the parties after the date the division’s determination is originally issued and sent to the parties, those copies are provided only as a courtesy and do not change the thirty-five day appeal and termination deadlines. Rule 6. Appeal

6.1 Any party to the claim may appeal the division’s determination.

6.1.1 Parties are encouraged, though not required, to use the division’s appeal form. A valid appeal is a written statement that is timely filed with the division, explains the clear error in the determination that is the basis for the appeal, and has been signed by the party or the party’s authorized representative.

6.1.2 No appeal will be heard and no hearing will be held unless the appeal is received by the division within thirty-five calendar days of the date the determination is sent. It is the responsibility of the party filing the appeal to ensure the appeal is received by the division within the thirty-five day filing deadline.

6.1.3 Upon receipt of the appeal, the division will notify the parties of the date of the hearing and any interim deadlines via U.S. postal mail, electronic means, or personal delivery.

6.1.4 Upon receipt of the appeal, the division will send a copy of the appeal and a copy of the record of its investigation to the parties via U.S. postal mail, electronic means, or personal delivery. All evidence submitted to the division as part of the investigation is part of the record on appeal and need not be resubmitted.

6.2 Parties who timely file a valid appeal of the division's determination will be afforded an administrative appeal hearing before a division hearing officer. Parties may appear by telephone.

6.2.1 The parties may submit new evidence to the hearing officer in accordance with deadlines imposed by the division.

6.2.2 New evidence must be sent to all other parties to the appeal. Failure to send all new evidence to all other parties to the appeal may result in the evidence being excluded from the record.

6.2.3 If the party who filed the appeal does not participate in the hearing, the appeal may be dismissed.

6.2.4 All testimony at a hearing must be recorded by the division but need not be transcribed unless the hearing officer’s decision is appealed.

6.2.5 The hearing officer may, upon the application of any party or on his or her own motion, convene a prehearing conference to discuss the issues on appeal, the evidence to be presented, and any other relevant matters that may simplify further proceedings.

6.2.6 The hearing officer will decide whether the division’s determination is based on a clear error of fact or law.

6.2.7 The hearing officer shall not engage in ex parte communication with any party to an appeal.

6.3 The hearing officer’s decision constitutes a final agency action pursuant to C.R.S. § 24-4-106. The division shall promptly provide all parties with a copy of the hearing officer’s decision via U.S. postal mail, electronic means, or personal delivery. The division shall notify the parties of their appeal rights pursuant to § 8-4-111.5(5).

_________________________________________________________________________ Editor’s Notes History Entire rule eff. 12/30/2014.

Entire rule eff. 09/01/2017.