7 Colo. Code Regs. § 1107-8.5

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

Section 7 CCR 1107-8.5 - 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:

1. Interviews of parties or witnesses;

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

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

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:

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

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

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

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

5. Records related to the "equivalent position" factors described in 7 CCR 1107-7, Section 7.3.4; and

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

E. All parties to an investigation 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.

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.

1. 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.

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

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.

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

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.

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

47 CR 23, December 10, 2024, effective 1/1/2025