Division of Family and Medical Leave Insurance Announces New Regulations Concerning the Procedures for FAMLI Violations

 Adrian Sanchez, Law Clerk

During a recent stakeholder meeting, the Division of Family and Medical Leave Insurance (the “Division”) announced that it would be proposing new and revised regulations for Colorado’s family and medical leave program (“FAMLI”). One set of proposed regulations concerns the procedures for investigations, determinations, and appeals of FAMLI violations.

 Option to pursue FAMLI violations either through the court system or the Division’s administrative procedures

Under the Division’s newly proposed rules governing investigations, determinations, and appeals,[1] aggrieved parties may seek relief for FAMLI violations either through the Colorado court system or the Division’s administrative procedures and processes. In other words, under the proposed rules, parties asserting FAMLI violations would not be required to exhaust the Division’s administrative remedies prior to pursuing litigation in court (unlike, for example, discrimination claims under federal or Colorado law).

  Per the proposed rules, if a FAMLI violation complaint is filed with the Division, the Division will have complete discretion as to whether to investigate the complaint or dismiss it.  Although either party to a complaint may appeal the Division’s final determination on a FAMLI violation complaint, parties may not appeal the Division’s discretionary decisions as to whether to initially investigate a FAMLI violation complaint (although it may be possible for the complainant to bring the complaint to state court if the Division declines to investigate).  Furthermore, if a complaint has gone/is in the process of going through the court system, the Division no longer has jurisdiction over that complaint.  

 The administrative appeal process for FAMLI violations, generally

As mentioned earlier, either party to a complaint may appeal the Division’s determination on the merits under these rules.  An appeal would be in the form of a written statement which clearly explains the error in the Division’s determination, and would need to be filed within forty-five days of the date the Division issued its final determination. Once the appeal is properly filed, an administrative appeal hearing is afforded to the parties before a Division hearing officer. The hearing officer’s decision would constitute a final agency action, and may include the following remedies/penalties:

1)     Monetary/other relief authorized by FAMLI or Division regulations; and/or

2)     An assessment of an amount owed (i.e., benefit overpayment, premium underpayment, fines, penalties, interest).[2]

Even so, either party to a complaint may still further appeal a hearing officer’s decision; albeit, only by commencing an action for judicial review in a district court with appropriate jurisdiction.

Burdens of proof

            While the proposed rules provide that a complainant maintains the burden to prove the elements of a FAMLI interference claim or a retaliation claim by a preponderance of the evidence, the rules would also create a rebuttable presumption of retaliation in favor of the complainant when 1) the complainant engaged in protected activity under FAMLI, and; 2) the employer took an adverse employment action (discipline, suspension, termination, etc.) without legitimate business reasons against the employee within 90 days of the protected activity.  In such situations the burden of proof would shift to the employer to rebut the presumption in favor of retaliation.

Note that these rules are still in the draft stage, and are likely subject to change pending feedback from stakeholders before the Division publishes the proposed rules and makes them available for comment.  Campbell Litigation will continue to monitor developments regarding FAMLI and the Division’s proposed rulemaking for the program, and remains available to assist employers in navigating these issues as the program’s rules continue to evolve.

[1] If adopted, these rules will be set forth in 7 C.C.R. 1107-8 et seq.

[2] These remedies/penalties may also be included in the Division’s final determination