7 Colo. Code Regs. § 1107-8.6

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

Section 7 CCR 1107-8.6 - Burdens of Proof

1. The party seeking an award of benefits or damages, the imposition of a fine, penalty, fee or interest, or any other relief, has the burden of proof to show the relief should be granted by a preponderance of the evidence. Where the Division proves the grounds for imposing fines, penalties, or fees, the amount of such fines, penalties, or fees shall be overturned or modified only if the employer or private plan proves that the Division abused its discretion.

2. Complaints alleging retaliatory personnel action under C.R.S. § 8-13.3-509 are analyzed as follows, with the preponderance of the evidence standard applying to all burdens of proof.

A. The Charging Party has the burden of proving all elements of a claim, including that an unlawful retaliatory personnel action occurred. The Respondent must explain which, if any, allegations it disputes. Any evidence probative of a relevant issue may be submitted or considered. If an employer takes an adverse employment action, as described in 7 CCR 1107-7, Section 7.2.5.B, against an employee who engaged in protected activity or an other protected party within ninety (90) days of the employee engaging in protected activity, such adverse employment action creates a rebuttable presumption of retaliation.

B. If the Charging Party proves unlawful retaliation or discrimination was a motivating factor for the complained-of practice, then a violation is proven. If the Charging Party cannot demonstrate that unlawful retaliation or discrimination was a motivating factor for the complained-of practice, then a violation has not been proven. However, if a violation is proven but the Respondent proves by a preponderance of the evidence that the complained-of practice would have occurred for another lawful reason, then the Division shall not award any damages as of the date the practice would have occurred.

C. In determining whether a violation occurred or whether the complained-of practice would have occurred for another lawful reason, evidence the Division may consider includes, but is not limited to:

1. Emails, written records, performance reviews, and other documentation that can be objectively evaluated;

2. Comparing the treatment of the Charging Party with similarly situated employees who did not engage in the protected activity;

3. Testimonies and statements from managers, supervisors, and other witnesses;

4. Explicit statements or actions indicating discriminatory intent;

5. Patterns of behavior, timing of adverse actions relative to the protected activity;

6. Contradictory, inconsistent, or false statements made by the Respondent or its agents;

7. An absence of contemporaneous or supporting evidence of the alleged basis for the adverse action.

3. Complaints alleging interference under C.R.S. § 8-13.3-509 are analyzed as follows, with the preponderance of the evidence standard applying to all burdens of proof.

A. The Charging Party has the burden of proving all elements of a claim, including that unlawful interference occurred. The Respondent must explain which, if any, allegations it disputes. Any evidence probative of a relevant issue may be submitted or considered. Interference is established when a Charging Party shows the Respondent engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by the FAMLI Act.

B. If the Charging Party meets its burden of proof, then a violation is proven. However, if a violation is proven but the Respondent proves by a preponderance of the evidence the violation resulted from circumstances beyond its control and that no alternative course of action was available, then the Division shall not award any damages.

4. Determinations must include a finding of fact on which the determination is based, the relevant section or sections of the law, and the date the determination was issued.

7 CCR 1107-8.6

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