COLORADO WORKS PROGRAM ACT GRIEVANCE PROCEDURE RULES

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Section 1 Basis, Purpose, and Statutory Authority

The purpose of the following rules is to establish a grievance procedure for use by the employment

community in matters related to welfare reform in compliance with sections 26-2-716 (3)(a) (IV), (b) of the

Colorado Works Program Act, (CWPA) and provisions of the Personal Responsibility and Work

Opportunity Reconciliation Act, (PRWORA) of 1996, as amended. The director of the division of labor

has the power to adopt, amend, or rescind, in accordance with section 24-4-103, and 8-1-107 (2)(r)

C.R.S., as amended reasonable and necessary rules relating to the administration of the grievance

procedure of the Colorado Works Program Act.

Section 2 Powers and Duties

The labor standards unit in the division of labor is responsible for administering the provisions of these

rules. In carrying out the provisions of these rules, the director of the division of labor has all applicable

duties and powers as outlined in Title 8, Article 1 of Colorado Revised Statutes, as amended.

Section 3 Definitions

3.1 - Definitions

THE FOLLOWING DEFINITIONS APPLY TO THESE RULES ONLY:

3.1.1 Administrator: the administrator of the labor standards unit in the division of labor.

3.1.2 Administrative Law Judge (ALJ): an administrative law judge appointed pursuant to section

24-30-1003, C.R.S., as amended.

3.1.3 Adult: the head of a household, including an emancipated minor or an individual over the

age of 18.

3.1.4 Complaint: a completed complaint form, or other document containing essentially the same

information, received by the division of labor, with regard to a potential violation of the

provisions of the Colorado Works Program Act, or these rules.

3.1.5 Complainant: a person who has filed a complaint with the division of labor.

3.1.6 Director: the director of the division of labor.

3.1.7 Displacement of a regular employee by a participant: includes but is not limited to:

tially the same

information, received by the division of labor, with regard to a potential violation of the

provisions of the Colorado Works Program Act, or these rules.

3.1.5 Complainant: a person who has filed a complaint with the division of labor.

3.1.6 Director: the director of the division of labor.

3.1.7 Displacement of a regular employee by a participant: includes but is not limited to:

(a) A reduction of hours (regular or overtime), compensation, or fringe benefits,

Code of Colorado Regulations

Secretary of State

State of Colorado

(b) A failure to restore a regular employee to the same or equivalent position after the

conclusion of approved leave of absence, including but not limited to vacation,

sick, maternity, family/medical leave, military reserve training or a Workers'

Compensation related temporary disability,

(c) Replacement while on a strike, lockout or other organized labor dispute,

(d) Terminations, suspensions, reductions in workforce, or layoffs for the purpose of

displacement,

(e) Other displacements as determined by the director or administrative law judge at any

proceedings conducted under the provisions of these rules.

3.1.8 Division: the division of labor in the Colorado Department of Labor and Employment

established by section, 24-1-121 (3)(a)(l), C.R.S, as amended.

3.1.9 Employee: any adult, performing labor or services for the benefit of and subject to the

direction and control of an employer.

3.1.10 Employer: any individual, limited liability company, partnership, corporation, association,

county, and public or private organization of any character employing any Temporary

Assistance for Needy Families (JANF) welfare to work participant in Colorado.

3.1.11 Executive Director: the executive director of the department of labor and employment.

3.1.12 Final Determination: the decision of the director at Step II - Director’s Hearing unless

appealed to Step III - Administrative Law Judge. In such cases the final determination is

the decision of the administrative law judge

istance for Needy Families (JANF) welfare to work participant in Colorado.

3.1.11 Executive Director: the executive director of the department of labor and employment.

3.1.12 Final Determination: the decision of the director at Step II - Director’s Hearing unless

appealed to Step III - Administrative Law Judge. In such cases the final determination is

the decision of the administrative law judge.

3.1.13 Final Investigative Report: the final investigative report released by a division investigator

at step I of the grievance process. The report shall contain findings, recommendations,

and appropriate material responses from interested parties.

3.1.14 Finding: a summary of a condition, in a preliminary or final investigative report, which is

substantially out of compliance, or may have a material impact on an employer’s positive

participation in programs authorized by the Colorado Works Program Act.

3.1.15 Full time: performing work for the benefit of an employer for a minimum of 32 hours per

work

3.1.16 Hearing: a hearing as described in the Section 7 - Grievance Procedure of these rules.

3.1.17 Investigator: an investigator of the division of labor.

3.1.18 Investigator’s Determination: the initial findings and recommendations made by the

investigator in the final investigative report.

3.1.19 Participant: an adult participating in a Welfare-to-Work component of the CWPA or

Subtitle A, (TANF Block Grant) of the Personal Responsibility and Work Opportunity Act

of 1996, as amended. A participant becomes a regular employee when he/she attains

permanent employment, and is no longer receiving public assistance under the TANF

programs referenced in section 3.1.26.

nvestigative report.

3.1.19 Participant: an adult participating in a Welfare-to-Work component of the CWPA or

Subtitle A, (TANF Block Grant) of the Personal Responsibility and Work Opportunity Act

of 1996, as amended. A participant becomes a regular employee when he/she attains

permanent employment, and is no longer receiving public assistance under the TANF

programs referenced in section 3.1.26.

3.1.20 Person: any individual, corporation, government, or governmental subdivision or agency,

business trust, estate, trust, limited liability company, partnership, association, or other

legal entity.

3.1.21 Preliminary Report: the initial report prepared by a division investigator in step I of the

grievance process, and is intended to inform interested parties of the likely content of the

final investigative report, and to prompt written responses to the findings and

recommendations contained in the report.

3.1.22 Program: refers to organized strategical plans, with regard to welfare reform, as

referenced and authorized in the Colorado Works Program Act (CWPA), or the Personal

Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), as

amended.

3.1.23 Recommendation: an official suggestion, in a preliminary or final investigative report,

regarding the actions an employer might take to bring an outlined condition into

compliance, or interested parties might take to bring resolution to an outlined dispute.

3.1.24 Re-determination: the review conducted by the administrator of the labor standards unit in

the division of labor.

3.1.25 Regular Employee: an employee who is not a participant, and who was working for an

employer during the period relevant to any complaint filed under these rules.

3.1.26 Temporary Assistance for Needy Families (TANF): Refers to the implementation of

federal block grants assistance under the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (PRWORA)

e division of labor.

3.1.25 Regular Employee: an employee who is not a participant, and who was working for an

employer during the period relevant to any complaint filed under these rules.

3.1.26 Temporary Assistance for Needy Families (TANF): Refers to the implementation of

federal block grants assistance under the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (PRWORA).

Section 4 Employer Records

Each employer participating in any welfare reform program, at any level, shall maintain true and accurate

work records containing such information as the division may prescribe. Such records shall be maintained

for a period of not less than five years and shall be open for inspection and be subject to copying in

accordance with section 8-1-117, C.R.S., as amended.

Information obtained, pursuant to an investigation conducted under these rules, shall be confidential and

shall not be open to public inspection. In the administration of the Colorado Works Program Act and the

rules promulgated in accordance with that act, the division shall cooperate with the county governments

of the State of Colorado, the Colorado Department of Human Services, the United States Department of

Labor, and the United States Department of Health and Human Services to the fullest extent consistent

with the provisions of these rules.

Section 5 Grievance Process

This section documents the steps of the grievance process. For the Grievance Procedure see Section 7.

5.1 Step I - Complaint

(a) Complaint

(b) Investigation

(c) Preliminary report

(d) Final report (determination)

(e) Protest findings and recommendations in the final investigative report

(f) Administrator’s review (re-determination)

(g) Administrator’s settlement conference

(h) Appeal to Step II - Director’s Hearing within fifteen (15) calendar days of the date of the

administrator’s decision

(I) If no such appeal is filed, the decision of the administrator becomes final

5.2 Step II - Director’s Hearing

(a) Hearing

indings and recommendations in the final investigative report

(f) Administrator’s review (re-determination)

(g) Administrator’s settlement conference

(h) Appeal to Step II - Director’s Hearing within fifteen (15) calendar days of the date of the

administrator’s decision

(I) If no such appeal is filed, the decision of the administrator becomes final

5.2 Step II - Director’s Hearing

(a) Hearing

(b) Issuance of decision (final order). Such order shall represent the agency’s final determination

(c) Appeal to Step III- Administrative Law Judge within thirty (30) calendar days

(d) If no such appeal if filed, the decision (order) of the director shall become final

5.3 Step III - Administrative Law Judge Appeal

(a) Review conducted at the division of administrative hearings in the department of personnel

(b) The administrative law judge shall render a decision within one hundred twenty (120) days of the

receipt of an appeal

(c) Appeal to Step IV - Judicial Review within thirty (30) calendar days of the decision of the

administrative law judge

(d) If no such appeal is filed, the decision of the administrative law judge becomes final

5.4 Step IV - Judicial Review - Courts

(a) Judicial review in accordance with the provisions of 24-4-106: C.R.S., as amended.

Section 6 Remedies

6.1 Remedies Authorized

(a) For the purposes of these rules, remedies authorized may include, but are not limited to:

1. Back pay

2. Reinstatement (with or without back pay)

3. Restoration of benefit packages, including but not limited to;

- vacation leave accrual

- sick leave accrual

- employer’s contribution to retirement plans

4. Restoration of service credit (anniversary or hire date)

5. Suspension or termination of payments from funds under the Colorado Works Program Act

6. Suspension or termination of future placement of participants with an employer who has

knowingly violated any protections provided under these rules

7. The director may order other equitable relief where appropriate

ibution to retirement plans

4. Restoration of service credit (anniversary or hire date)

5. Suspension or termination of payments from funds under the Colorado Works Program Act

6. Suspension or termination of future placement of participants with an employer who has

knowingly violated any protections provided under these rules

7. The director may order other equitable relief where appropriate

(b) Nothing in this rule shall be construed to limit the ability or right of any individual or his or her

exclusive bargaining representative from pursuing available procedures and remedies under any

applicable collective bargaining agreement.

(c) In the event the application of these remedies changes the placement status of a participant, such

application should not be deemed to prejudice the participant’s eligibility for benefits under any

welfare reform program.

Section 7 Grievance Procedure

7.1 Step I

7.1.1 - Complaint

(a) Any party who believes they have been displaced from employment in violation of the Colorado

Works Program Act, can file a complaint with the division of labor - labor standards unit in the

Colorado Department of Labor and Employment.

(b) Complaints must be filed in writing, and contain:

1.) The name, address, telephone number, and social security number of the complainant.

2.) The name, address and telephone number of the employer.

3.) A summary of the complaint including the position last held by the complainant, the hire date

of the complainant, the termination date of the complainant, and any information available

on the person believed to have replaced the complainant.

4.) Any other evidence that supports the validity of the complaint.

7.1.2 -Investigation

.

2.) The name, address and telephone number of the employer.

3.) A summary of the complaint including the position last held by the complainant, the hire date

of the complainant, the termination date of the complainant, and any information available

on the person believed to have replaced the complainant.

4.) Any other evidence that supports the validity of the complaint.

7.1.2 -Investigation

(a) Upon receipt of a complaint the division will:

1.) Review the complaint to determine if it has jurisdiction to handle the complaint.

2.) Assign the case to an investigator and conduct an investigation to gather and review

evidence.

3.) At the conclusion of the investigation the investigator shall issue a preliminary report. Such

report will contain findings and recommendations; a copy of which will be made available

to the complainant and employer.

4.) Both parties will have fourteen (14) calendar days to provide comments, responses, or

additional information for consideration.

5.) The investigator incorporates responses and other appropriate information into the report and

issues a final investigative report.

(b) If both parties agree with the findings and recommendations the parties shall submit evidence

documenting the affirmative actions taken or agreed upon to settle the dispute. The investigator

may assist in documenting such affirmative actions or agreement.

(c) A complainant may not waive any rights, or accept a settlement amount of less than that

recommended in the final investigative report except as agreed upon in a settlement conference

before the administrator of the labor standards unit as provided for in section 7.1.3 (d) (3) and (4)

of these rules.

(d) Either party who wishes to protest the findings and recommendations in the final investigative report

may request an administrator’s review.

ept a settlement amount of less than that

recommended in the final investigative report except as agreed upon in a settlement conference

before the administrator of the labor standards unit as provided for in section 7.1.3 (d) (3) and (4)

of these rules.

(d) Either party who wishes to protest the findings and recommendations in the final investigative report

may request an administrator’s review.

(e) The request for an administrator’s review shall be filed with the administrator of the labor standards

unit of the division of labor, within fifteen (15) calendar days from the release date of the final

investigative report.

(f) If no protest, as provided for in subsection (d) of this section 7.1.2 is filed, the determination of the

investigator in the final investigative report shall become final.

7.1.3 - Administrator’s Review

(a) Upon timely receipt of a request for an administrator’s review from either party, the administrator

shall;

1.) Review the investigative report to determine that;

- the investigative report was prepared in accordance with unit policy and procedure,

- findings are reasonable and supported by substantial evidence,

- recommendations are appropriate and reasonable.

2.) If the administrator finds a material problem with the report, it may be returned to the

investigation’s unit for further follow-up work.

3.) If the administrator finds no material problem with the report, both parties are notified of such

decision and the parties are invited to participate in a settlement conference.

4.) If all parties agree, the administrator schedules the settlement conference, and notifies all

parties of the time and date of the conference.

5.) If any interested party refuses to participate in a settlement conference, the grievance can be

appealed to Step II - Director’s Hearing within fifteen (15) calendar days of the

administrator’s decision.

6.) The administrator shall within thirty (30) calendar days of the receipt of a request for

settlement conference issue a re-determination decision

s of the time and date of the conference.

5.) If any interested party refuses to participate in a settlement conference, the grievance can be

appealed to Step II - Director’s Hearing within fifteen (15) calendar days of the

administrator’s decision.

6.) The administrator shall within thirty (30) calendar days of the receipt of a request for

settlement conference issue a re-determination decision.

7.) The parties shall not request an appeal of the administrator’s decision if a settlement

conference as provided for in subsection 4 of this section 7.1.2

(a) has been scheduled. The time limit for requesting an appeal to Step II of the

grievance process will start at the conclusion of such settlement conference.

(b) Any party wishing to appeal an adverse decision of the administrator may request a

hearing before the director of the division of labor at Step II - Director’s Hearing

of the grievance process. Such appeal shall be filed with the director of the

division of labor at the department of labor and employment within fifteen (15)

calendar days of the date of the administrator’s re-determination decision.

(c) If no such request is filed, the decision of the administrator becomes final.

7.2 Step II - Director’s Hearing

(a) Upon receipt of a request for hearing to appeal the administrator’s decision, the director of the

division of labor shall schedule a hearing. Such proceeding shall be conducted in accordance

with the State Administrative Procedures Act.

(b) The director shall issue a decision within ten (10) calendar days of the conclusion of a hearing as

provided for in sub-section (a) of this section 7.2. Such decision which shall be an order upon the

parties.

(c) Any party wishing to appeal an adverse decision of the director may appeal to Step III - Administrative

Law Judge, by filing such appeal with the division of administrative hearings, and the division of

labor within thirty (30) calendar days of the date of the director’s decision (order).

vided for in sub-section (a) of this section 7.2. Such decision which shall be an order upon the

parties.

(c) Any party wishing to appeal an adverse decision of the director may appeal to Step III - Administrative

Law Judge, by filing such appeal with the division of administrative hearings, and the division of

labor within thirty (30) calendar days of the date of the director’s decision (order).

(d) If no such appeal is filed as outlined in subsection (c) of this section 7.2, the decision (order) of the

director shall become final. Such decision shall represent a final determination, or final agency

action.

(e) The director may obtain a decree of the district court for the enforcement of such order upon showing

that a party is subject to the jurisdiction of the division, and resides or transacts business within

the county in which the petition for enforcement is brought.

7.3 Step III - Administrative Law Judge Appeal

(a) An aggrieved complainant can file an appeal with the division of administrative hearings. A request for

appeal can be filed by mailing or delivering the request to the offices of the Director of the

Division of Labor, and the offices of the Chief Administrative Law Judge at the Division of

Administrative Hearings. The request must be filed at both offices.

(b) A copy of the appeal must also be mailed or delivered to all interested parties. The appeal should

include reasons (exceptions) for why the decision of the director was not correct. The request for

an appeal review should contain a mailing date and the parties notified should file a response to

the exceptions within thirty days of that date The response should be filed with the chief

administrative law judge at the division of administrative hearings

o all interested parties. The appeal should

include reasons (exceptions) for why the decision of the director was not correct. The request for

an appeal review should contain a mailing date and the parties notified should file a response to

the exceptions within thirty days of that date The response should be filed with the chief

administrative law judge at the division of administrative hearings

(c) If any interested party intends to have a part, or specific parts, of *e audio recording of the director’s

hearing transcribed, such request, formally referred to as a “designation of record”, should be

filed with the division of labor within twenty days of the date of the director’s decision. A copy of

the designate shall be mailed or delivered to all interested parties.

1.) Upon receipt of a designation of records, or a request for appeal from any interested party, or

the division of administrative hearings, the division of labor will forward the entire record

to the division of administrative hearings along with any request for portions of the record

to be transcribed. The division of administrative hearings shall cause the requested

portions of the audio recording to be transcribed.

2.)The cost of transcribing all or part of an audio tape of a proceeding shall be paid by the

requestor. The division of administrative hearings may require the estimated cost of such

transcript be paid in advance.

3.) The entire record shall include, an audio tape of the Director’s Hearing, along with all

pleadings, applications, evidence, exhibits, and other papers> presented or considered,

matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of

law proposed by any party, and any written brief filed.

(d) The administrative law judge shall review the record, and issue a decision within one hundred twenty

(120) days of the receipt of the request for appeal.

all

pleadings, applications, evidence, exhibits, and other papers> presented or considered,

matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of

law proposed by any party, and any written brief filed.

(d) The administrative law judge shall review the record, and issue a decision within one hundred twenty

(120) days of the receipt of the request for appeal.

(e) Any party wishing to appeal an adverse decision of the administrative law judge may appeal to Step

IV- Judicial Review by filing an appeal within thirty (30) calendar days of the date of the decision

of the administrative law judge in accordance with the provisions of section 24-4-106 C.R.S., as

amended.1

1 Processes at this step are intended to comply with the State Administrative Procedures Act, specifically, 24-4-105, (14), (15), and

(16), C.R.S., as amended. In the event of a conflict between the information contained in this section and an official printing of the

State Administrative Procedures Act, the official printing will be the controlling document.

(f) If no such appeal is filed, the decision of the administrative law judge becomes final. Such decision

shall represent a final determination, or final agency action.

7.4 Step IV - Judicial Review - Courts

Judicial Review

(a) Any appeal for judicial review of the decision of the administrative law judge, shall be brought in the

appropriate district court for the district where the complainant resides by utilizing appropriate

proceedings under section 24-4-106, C. R. S., as amended.

. Such decision

shall represent a final determination, or final agency action.

7.4 Step IV - Judicial Review - Courts

Judicial Review

(a) Any appeal for judicial review of the decision of the administrative law judge, shall be brought in the

appropriate district court for the district where the complainant resides by utilizing appropriate

proceedings under section 24-4-106, C. R. S., as amended.

(b) Such appeal proceeding shall be initiated by the filing of a petition in the appropriate district court and

the service of a copy thereof upon the agency whose decision is the subject of the appeal, and

upon all parties who appeared before the division of labor, or the division of administrative

hearings. Thereafter such proceeding shall be processed under the rules of procedure of that

court.

Section 8 Good Cause

Good Cause

8.1 - Request for good cause consideration - An interested party who files an untimely request at Steps 1

-2 of the grievance process, or fails to appear at any conference, hearing, or appeal of those

steps, may request the director to consider whether there was good cause for failing to meet a

filing deadline, or appearance dates.

1) Any party requesting good cause consideration should file a statement, with the division,

containing the reasons for why the filing deadline, or appearance date was missed. The

requesting party shall notify all interested parties of such request.

2) Any supporting evidence, which shall include documents outlining the method used to notify

the parties, should be submitted as an attachment to such statement.

requesting good cause consideration should file a statement, with the division,

containing the reasons for why the filing deadline, or appearance date was missed. The

requesting party shall notify all interested parties of such request.

2) Any supporting evidence, which shall include documents outlining the method used to notify

the parties, should be submitted as an attachment to such statement.

3) The requirements in both subsections 1 and 2 of this section 8.1 shall be met before a good

cause consideration can be conducted.

8.2 - Good cause consideration - steps 1 - 2 The director will review such statement and supporting

evidence and issue a decision on the good cause request. All interested parties shall be notified

of such decision. If the director determines the requesting party had good cause for failing to

meet the filing deadline, or appear, the grievance process shall continue as if the deadline had

not been missed. If the director determines that good cause is not demonstrated, the

determination, re-determination, or decision just prior to the request for good cause consideration

shall become final.

8.3 - Good cause consideration - step 3 - The determination of good cause at step three of the grievance

process shall be made by the division of administrative hearings.

Section 9 Deadlines

9.1 For the purpose of these rules, wherever a response, protest or filing deadline falls on a weekend or

official State holiday, the last day to file shall be the next business day.

Section 10 Interventions

10.1 Any person may intervene in any proceeding by filing a motion to intervene demonstrating a

substantial interest the person has that may be impacted by the proceeding.

Section 11 Severability

11.1 If any section, sentence, clause or phrase of this rule is for any reason held to be invalid, such

decision shall not affect the validity of the remaining portions of the rule.