7 Colo. Code Regs. § 1103-8-5

Current through Register Vol. 47, No. 24, December 25, 2024

Rule 7 CCR 1103-8-5 - Appeal

5.1 The employer may appeal a Citation and one or more Notices of Assessment.

5.1.1 A valid appeal is a written statement that is timely filed with the Division, explains the clear error in the determination or other grounds that are the basis for the appeal, and has been signed by the employer or the employer's authorized representative. The employer is encouraged to use the Division's appeal form.

5.1.2 No appeal will be heard and no hearing will be held unless the appeal is received by the Division within 35 calendar days of the date the determination is sent. It is the responsibility of the employer filing the appeal to ensure the appeal is received by the Division within the 35-day filing deadline.

5.1.3 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.

5.1.4 Upon receipt of the appeal, the Division will send 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.

5.1.5 The filing of an appeal does not, except to the extent that a stay is granted, toll any deadlines applicable under, or triggered by the issuance of, the determination, decision, or order being appealed.

5.2 Parties to the appeal will be the employer and the Division Direct Investigations program. Notices to the Division as a party, including disclosure of new evidence pursuant to Rule 5.6, should be sent via email to cdle_ls_direct_investigations@state.co.us.

5.3 An employer that timely files 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.

5.4 Consistent with C.R.S. § 8-4-111.5, the hearing officer shall have the power and authority to call, preside at, and conduct hearings. The hearing officer has the power to administer oaths and affirmations, take depositions, certify official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed determination.

5.4.1 The provisions of C.R.S. § 8-4-111.5(2)(b) and (c), and of (3)(b), are applicable to an appeal filed pursuant to Rule 5.1 to the maximum extent allowable by law.

5.5 The parties may submit new testimonial evidence to the hearing officer in accordance with deadlines imposed by the Division. The parties may submit new documentary or other non-testimonial evidence in accordance with deadlines imposed by the Division and upon showing "good cause," which may be assessed based on any relevant factors, including but not limited to:

5.5.1 That the new evidence was previously not known or obtainable, despite diligent evidence-gathering efforts by the party offering the new evidence;

5.5.2 That the party failed to receive fair notice of the investigation or of a key filing by another party or by the Division to which the new evidence is responsive;

5.5.3 That factors outside the control of the party prevented a timely action or interfered with the opportunity to act, except that the acts and omissions of a party's authorized representative are considered the acts and omissions of the party and are not considered to be a factor outside the party's control as intended by this rule;

5.5.4 That a determination raised a new issue or argument that cannot be responded to adequately without the new evidence;

5.5.5 That, at the investigation stage, the party offering new evidence requested more time to submit evidence, yet was denied, and in the hearing officer's judgment (a) the need for more time was legitimate and did not reflect neglect by the party, (b) the denial of the request for more time was unwarranted, and (c) exclusion of the evidence would cause substantial injustice to the party; and/or

5.5.6 That failure to admit the evidence otherwise would cause substantial injustice and did not arise from neglect by the party.

5.6 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.

5.7 If the employer that filed the appeal does not participate in the hearing, the appeal may be dismissed.

5.8 The Division shall keep a full and complete record of all proceedings in connection with the investigation. All testimony at a hearing must be recorded by the Division but need not be transcribed unless the hearing officer's Decision is appealed.

5.9 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.

5.10 The hearing officer shall make a decision on each relevant issue raised, including findings of fact, conclusions of law, and an order. The hearing officer will decide whether the Division's determination is based on a clear error of fact or law.

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

5.12 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, as consistent with applicable law.

5.13 Any party to the administrative proceeding may appeal the hearing officer's decision only by commencing an action for judicial review in the district court of competent jurisdiction within 35 days after the date of mailing of the decision by the Division. A respondent may appeal a Division determination in accordance with Rule 6 of the Wage Protection Rules, 7 CCR 1103-7. This rule applies to the maximum extent consistent with the Colorado Administrative Procedures Act, C.R.S. §§ 24-4-105, -106. Judicial review is limited to appeal briefs and the record designated on appeal.

5.14 An appeal may, at the discretion of the hearing officer, be sequenced and/or divided into two or more stages on discrete questions of liability and/or relief (i.e., bifurcation), yielding two or more decisions and/or phases of the appeal.

7 CCR 1103-8-5

42 CR 02, January 25, 2019, effective 2/14/2019

43 CR 12, June 25, 2020, effective 7/15/2020

43 CR 23, December 10, 2020, effective 1/1/2021

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