Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED SENATE BILL 14-005 LLS NO. 14-0175.01 Jerry Barry x4341 SENATE SPONSORSHIP Ulibarri, HOUSE SPONSORSHIP Singer and Duran, Senate Committees House Committees Judiciary A BILL FOR AN ACT 101 CONCERNING ALTERNATIVE ADMINISTRATIVE REMEDIES FOR THE 102 PROCESSING OF CERTAIN WAGE CLAIMS, AND, IN CONNECTION 103 THEREWITH, AMENDING THE PROVISIONS FOR WRITTEN NOTICES 104 OF A WAGE CLAIM. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) For purposes of duties, obligations, and liabilities related to the payment of wages, the bill: Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute. ! Expands wage claims to include violations involving the state minimum wage; ! Requires an employer to maintain records reflecting information in an employee's pay statement for at least 3 years after payment of the wages and to make the records available to the employee and the division of labor in the department of labor and employment (division). The bill authorizes the executive director of the division to impose a fine on an employer who fails to retain or make available the records. ! Requires an employer to mail a check for wages to the employee's last-known address within 60 days after the check was due if an employer is unable to otherwise deliver the check to the employee. Under current law, to recover penalties in an action for unpaid wages, an employee is required to make a written demand on his or her employer to recover penalties, and the penalties are increased by 50% if the employer's failure to pay is willful. The bill: ! Provides that failure to respond to a written demand creates a rebuttable presumption that the failure to pay was willful; ! Provides that service of a small claims court complaint serves as the written demand; and ! Reduces the penalties for failing to pay wages by 50% if the employer makes legal tender to the employee of the amount that the employer believes in good faith is due the employee. The bill authorizes the director of the division to establish an administrative procedure to adjudicate wage claims. For wage claims filed with the division for $7,500 or less, the bill establishes procedures for the division to adjudicate the claim and issue citations and notices of assessments for the amounts due. A person dissatisfied with a decision may commence a de novo civil action in any county or district court of competent jurisdiction. Current law provides that fines collected by the division are deposited in the general fund. The bill provides that the fines are deposited in a new wage theft enforcement fund. The bill provides that an employee is entitled to reasonable attorney fees in an action to recover the minimum wage. 1 2 3 Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Short title. This act shall be known as the "Wage Protection Act of 2014". -2- SB14-005 1 2 3 4 5 6 SECTION 2. In Colorado Revised Statutes, amend 8-4-101 as follows: 8-4-101. Definitions. As used in this article, unless the context otherwise requires: (1) "CITATION" MEANS A WRITTEN DETERMINATION BY THE DIVISION THAT A WAGE PAYMENT REQUIREMENT HAS BEEN VIOLATED. 7 (1) (2) "Credit" means an arrangement or understanding with the 8 bank or other drawee for the payment of an order, check, draft, note, 9 memorandum, or other acknowledgment of indebtedness. 10 11 12 13 (2) (3) "Director" means the director of the division of labor or his or her designee. (3) (4) "Division" means the division of labor in the department of labor and employment. 14 (4) (5) "Employee" means any person, including a migratory 15 laborer, performing labor or services for the benefit of an employer in 16 which the employer may command when, where, and how much labor or 17 services shall be performed. For the purpose of this article, an individual 18 primarily free from control and direction in the performance of the 19 service, both under his or her contract for the performance of service and 20 in fact, and who is customarily engaged in an independent trade, 21 occupation, profession, or business related to the service performed is not 22 an "employee". 23 (5) (6) "Employer" means every person, firm, partnership, 24 association, corporation, migratory field labor contractor or crew leader, 25 receiver, or other officer of court in Colorado, and any agent or officer 26 thereof, of the above mentioned classes, employing any person in 27 Colorado; except that the provisions of this article shall not apply to the -3- SB14-005 1 state or its agencies or entities, counties, cities and counties, municipal 2 corporations, quasi-municipal corporations, school districts, and 3 irrigation, reservoir, or drainage conservation companies or districts 4 organized and existing under the laws of Colorado. 5 (6) (7) "Field labor contractor" means anyone who contracts with 6 an employer to recruit, solicit, hire, or furnish migratory labor for 7 agricultural purposes to do any one or more of the following activities in 8 this state: Hoeing, thinning, topping, sacking, hauling, harvesting, 9 cleaning, cutting, sorting, and other direct manual labor affecting beets, 10 onions, lettuce, potatoes, tomatoes, and other products, fruits, or crops in 11 which labor is seasonal in this state. Such term shall not include a farmer 12 or grower, packinghouse operator, ginner, or warehouseman or any 13 full-time regular and year-round employee of the farmer or grower, 14 packinghouse operator, ginner, or warehouseman who engages in such 15 activities, nor shall it include any migratory laborer who engages in such 16 activities with regard to such migratory laborer's own children, spouse, 17 parents, siblings, or grandparents. 18 19 (8) "FINE" MEANS ANY MONETARY AMOUNT ASSESSED AGAINST AN EMPLOYER AND PAYABLE TO THE DIVISION. 20 (7) (9) "Migratory laborer" means any person from within or 21 without the limits of the state of Colorado who offers his or her services 22 to a field labor contractor, whether from within or from without the limits 23 of the state of Colorado, so that said field labor contractor may enter into 24 a contract with any employer to furnish the services of said migratory 25 laborers in seasonal employment. 26 (10) "NOTICE OF ASSESSMENT" MEANS A WRITTEN NOTICE BY THE 27 DIVISION, BASED ON A CITATION, THAT THE EMPLOYER MUST PAY THE -4- SB14-005 1 2 3 4 5 AMOUNT OF WAGES, PENALTIES, OR FINES ASSESSED. (11) "NOTICE OF COMPLAINT" MEANS THE LETTER SENT BY THE DIVISION AS DESCRIBED IN SECTION 8-4-111 (2) (12) "PENALTY" (a). MEANS ANY MONETARY AMOUNT ASSESSED AGAINST AN EMPLOYER AND PAYABLE TO AN EMPLOYEE. 6 (13) "REPEAT WILLFUL VIOLATOR" MEANS AN EMPLOYER THAT, 7 WITHIN THREE YEARS OF THE DATE OF THE MOST RECENT VIOLATION 8 RESULTING IN A CITATION AND NOTICE OF ASSESSMENT, WAS THE SUBJECT 9 OF A FINAL AND BINDING CITATION AND NOTICE OF ASSESSMENT FOR A 10 SUBSEQUENT VIOLATION OF A WAGE PAYMENT REQUIREMENT. 11 (14) "WAGE COMPLAINT" MEANS A COMPLAINT FILED WITH THE 12 DIVISION FROM AN EMPLOYEE FOR UNPAID WAGES ALLEGING THAT AN 13 EMPLOYER HAS VIOLATED SECTION 14 COLORADO CONSTITUTION, THIS ARTICLE, ARTICLE 6 OF THIS TITLE, OR 15 ANY RULE ADOPTED BY THE DIRECTOR PURSUANT TO THIS ARTICLE OR 16 ARTICLE 6 OF THIS TITLE. 15 OF ARTICLE XVIII OF THE 17 (8) (15) (a) "Wages" or "compensation" means: 18 (I) All amounts for labor or service performed by employees, 19 whether the amount is fixed or ascertained by the standard of time, task, 20 piece, commission basis, or other method of calculating the same or 21 whether the labor or service is performed under contract, subcontract, 22 partnership, subpartnership, station plan, or other agreement for the 23 performance of labor or service if the labor or service to be paid for is 24 performed personally by the person demanding payment. No amount is 25 considered to be wages or compensation until such amount is earned, 26 vested, and determinable, at which time such amount shall be payable to 27 the employee pursuant to this article. -5- SB14-005 1 (II) Bonuses or commissions earned for labor or services 2 performed in accordance with the terms of any agreement between an 3 employer and employee; 4 (III) Vacation pay earned in accordance with the terms of any 5 agreement. If an employer provides paid vacation for an employee, the 6 employer shall pay upon separation from employment all vacation pay 7 earned and determinable in accordance with the terms of any agreement 8 between the employer and the employee. 9 (b) "Wages" or "compensation" does not include severance pay. 10 (16) "WILLFUL" MEANS A PERSON KNEW OR SHOWED A RECKLESS 11 DISREGARD FOR WHETHER THE CONDUCT WAS PROHIBITED BY SECTION 15 12 OF ARTICLE 13 ARTICLE 14 PURSUANT TO THIS ARTICLE OR ARTICLE 6 OF THIS TITLE. 15 6 XVIII OF THE COLORADO CONSTITUTION, THIS ARTICLE, OF THIS TITLE, OR ANY RULE ADOPTED BY THE DIRECTOR (17) "WRITTEN DEMAND" MEANS ANY WRITTEN DEMAND FOR 16 WAGES OR COMPENSATION FROM OR ON BEHALF OF AN EMPLOYEE, 17 INCLUDING A NOTICE OF COMPLAINT, MAILED OR DELIVERED TO THE 18 EMPLOYER'S CORRECT ADDRESS. 19 20 SECTION 3. In Colorado Revised Statutes, 8-4-103, add (4.5) as follows: 21 8-4-103. Payment of wages - insufficient funds - pay statement 22 - record retention - tip notification. (4.5) AN EMPLOYER SHALL RETAIN 23 RECORDS REFLECTING THE INFORMATION CONTAINED IN AN EMPLOYEE'S 24 ITEMIZED PAY STATEMENT AS DESCRIBED IN SUBSECTION 25 SECTION FOR A PERIOD OF AT LEAST THREE YEARS AFTER THE WAGES OR 26 COMPENSATION WERE DUE. 27 INSPECTION BY THE DIVISION, AND THE EMPLOYER SHALL PROVIDE COPIES THE (4) OF THIS RECORDS SHALL BE AVAILABLE FOR -6- SB14-005 1 OF THE RECORDS UPON REQUEST BY THE DIVISION OR THE EMPLOYEE. THE 2 DIRECTOR MAY IMPOSE A FINE OF UP TO TWO HUNDRED FIFTY DOLLARS PER 3 EMPLOYEE PER MONTH ON AN EMPLOYER WHO VIOLATES THIS SUBSECTION 4 (4.5). 5 6 SECTION 4. In Colorado Revised Statutes, 8-4-109, amend (3); and add (1) (c) as follows: 7 8-4-109. Termination of employment - payments required - 8 civil penalties - payments to surviving spouse or heir. (1) (c) IF AN 9 EMPLOYER HAS MADE THE EMPLOYEE'S WAGES OR COMPENSATION 10 AVAILABLE UNDER PARAGRAPH 11 SUBPARAGRAPH 12 AND THE EMPLOYEE HAS NOT RECEIVED THE WAGES OR COMPENSATION 13 WITHIN SIXTY DAYS AFTER THE WAGES OR COMPENSATION WERE DUE, THE 14 EMPLOYER SHALL MAIL THE EMPLOYEE'S CHECK FOR WAGES OR 15 COMPENSATION DUE TO THE EMPLOYEE'S LAST-KNOWN MAILING ADDRESS. 16 (3) (a) If an employer refuses to pay wages or compensation in 17 accordance with subsection (1) of this section, the employee or his or her 18 designated agent shall make a written demand for the payment within 19 sixty days after the date of separation and shall state in the demand where 20 such payment can be received. 21 (a.5) (a) (1) OR OF THIS SUBSECTION (1), OF THIS SUBSECTION (I) OR (II) OF PARAGRAPH (b) If the employer disputes the amount of wages or 22 compensation claimed by an employee under this article and if, within 23 fourteen days after the employee's demand, the employer makes a legal 24 tender of the amount that the employer in good faith believes is due, the 25 employer shall not be liable for any penalty unless, in a legal action, the 26 employee recovers a greater sum than the amount so tendered. 27 (b) If an employee's earned, vested, and determinable wages or -7- SB14-005 1 compensation are not mailed to the place of receipt specified in a demand 2 for payment and postmarked within fourteen days after the receipt of such 3 demand, the employer shall be liable to the employee for the wages or 4 compensation, and a penalty of the sum of the following amounts of 5 wages or compensation due or, if greater, the employee's average daily 6 earnings for each day, not to exceed ten days, until such payment or other 7 settlement satisfactory to the employee is made: 8 (I) One hundred twenty-five percent of that amount of such wages 9 or compensation up to and including seven thousand five hundred dollars; 10 11 12 and (II) Fifty percent of that amount of such wages or compensation that exceed seven thousand five hundred dollars. 13 (c) (b) If the employee can show that the employer's failure to pay 14 is willful, the penalty required under paragraph (b) (a) of this subsection 15 (3) shall increase by fifty percent. Evidence that a judgment has, within 16 the previous five years, been entered against the employer for failure to 17 pay wages or compensation shall be IS admissible as evidence of willful 18 conduct. IF A WRITTEN DEMAND FROM OR ON BEHALF OF THE EMPLOYEE 19 WAS MAILED OR DELIVERED TO THE EMPLOYER'S CORRECT ADDRESS 20 PURSUANT TO PARAGRAPH 21 FAILURE TO RESPOND TO THE DEMAND WITHIN FOURTEEN DAYS CREATES 22 A REBUTTABLE PRESUMPTION THAT THE EMPLOYER'S FAILURE TO PAY WAS 23 WILLFUL. 24 DEMAND ARE ADMISSIBLE IN EVIDENCE TO REBUT THE PRESUMPTION. AN (c) OF THIS SUBSECTION (3), THE EMPLOYER'S EMPLOYER'S GOOD FAITH EFFORTS TO RESPOND TO THE 25 (d) (c) (I) The daily earnings penalty shall not begin to accrue 26 until the employer receives the written demand set forth in paragraph (a) 27 of this subsection (3). THE PENALTIES ESTABLISHED IN PARAGRAPH (a) OF -8- SB14-005 1 THIS SUBSECTION (3) 2 DEMAND TO THE EMPLOYER AT LEAST FOURTEEN DAYS PRIOR TO FILING AN 3 ACTION. THE EMPLOYER SHALL MAKE PAYMENT TO THE EMPLOYEE AT THE 4 ADDRESS CONTAINED IN THE DEMAND OR, IF NO ADDRESS IS STATED IN THE 5 DEMAND, THE EMPLOYEE'S LAST KNOWN ADDRESS ACCORDING TO THE 6 RECORDS OF THE EMPLOYER. ONLY APPLY IF THE EMPLOYEE MADE A WRITTEN 7 (II) The employee or his or her designated agent may commence 8 a civil action to recover the penalty set forth in this subsection (3). Any 9 employee or his or her designated agent who has not made a written 10 demand for the payment within sixty days after the date of separation or 11 who has otherwise not been available to receive payment shall not be 12 entitled to any such penalty under this subsection (3). FOR AN ACTION 13 FILED IN A SMALL CLAIMS COURT, ESTABLISHED PURSUANT TO PART 4 OF 14 ARTICLE 15 WRITTEN DEMAND AT LEAST FOURTEEN DAYS BEFORE THE EMPLOYER IS 16 SERVED WITH THE COMPLAINT OR OTHER DOCUMENT COMMENCING THE 17 ACTION, SERVICE OF THE COMPLAINT OR OTHER DOCUMENT SERVES AS THE 18 WRITTEN DEMAND UNDER THIS SUBSECTION 19 subsection (3) shall be made in the form of a check draft or voucher in the 20 name of the employee. 6 OF TITLE 13, C.R.S., IF THE EMPLOYER HAS NOT RECEIVED A (3). A payment under this 21 (d) AN EMPLOYER WHO, WITHIN FOURTEEN DAYS AFTER RECEIPT 22 OF A WRITTEN DEMAND, MAKES A LEGAL TENDER OF THE AMOUNT THAT 23 THE EMPLOYER REASONABLY AND IN GOOD FAITH BELIEVES IS DUE THE 24 EMPLOYEE IS LIABLE FOR ONLY FIFTY PERCENT OF THE PENALTY 25 CALCULATED PURSUANT TO PARAGRAPH 26 27 (a) OF THIS SUBSECTION (3). SECTION 5. In Colorado Revised Statutes, amend 8-4-111 as follows: -9- SB14-005 1 8-4-111. Enforcement - duty of director - duties of district 2 attorneys or city attorneys. (1) (a) It is the duty of the director to 3 inquire diligently for any violation of this article, and to institute the 4 actions for penalties OR FINES provided for in this article in such cases as 5 he or she may deem proper, and to enforce generally the provisions of this 6 article. THE DIRECTOR MAY ESTABLISH AN ADMINISTRATIVE PROCEDURE 7 TO RECEIVE COMPLAINTS AND ADJUDICATE CLAIMS FOR NONPAYMENT OF 8 WAGES OF SEVEN THOUSAND FIVE HUNDRED DOLLARS OR LESS. 9 PROCEDURES MAY INCLUDE CLAIMS OF EMPLOYEES WHERE NO 10 INTERRUPTION 11 OCCURRED. THE PENALTIES ESTABLISHED BY SECTION 8-4-109 (3) APPLY 12 TO ACTIONS INSTITUTED BY THE DIRECTOR UNDER THIS ARTICLE WHEN NO 13 INTERRUPTION 14 OCCURRED. 15 (b) THE OF OF THE THE EMPLOYER-EMPLOYEE THE EMPLOYER-EMPLOYEE RELATIONSHIP RELATIONSHIP HAS HAS DIRECTOR SHALL PROMULGATE RULES PROVIDING FOR 16 NOTICE TO EMPLOYEES OF AN EMPLOYEE'S RIGHTS UNDER THIS SECTION 17 AND SECTION 8-4-111.5, OF THE LIMITATIONS ON THE AMOUNT OF WAGES, 18 COMPENSATION, AND PENALTIES AVAILABLE UNDER THE ADMINISTRATIVE 19 REMEDY, AND OF THE EMPLOYEE'S OPTION TO BRING A CLAIM FOR WAGES 20 AND COMPENSATION IN COURT WITHOUT PURSUING THE ADMINISTRATIVE 21 REMEDY. 22 (2) (a) (I) IF ONE OR MORE EMPLOYEES FILES A WAGE COMPLAINT 23 WITH THE DIVISION CLAIMING UNPAID WAGES OR COMPENSATION OF SEVEN 24 THOUSAND FIVE HUNDRED DOLLARS OR LESS PER EMPLOYEE, EXCLUSIVE 25 OF PENALTIES AND FINES, THE DIVISION SHALL INVESTIGATE THE WAGE 26 COMPLAINT. 27 PROCEDURE BY SENDING A NOTICE OF COMPLAINT TO THE EMPLOYER BY THE DIVISION SHALL INITIATE THE ADMINISTRATIVE -10- SB14-005 1 MAIL OR ELECTRONIC MEANS IN ACCORDANCE WITH RULES AS THE 2 DIRECTOR MAY PROMULGATE WHEN THE COMPLAINT STATES A CLAIM FOR 3 RELIEF. THE NOTICE OF THE COMPLAINT MUST INCLUDE: 4 (A) THE NAME OF THE COMPLAINANT; 5 (B) THE NATURE OF THE COMPLAINT; AND 6 (C) THE 7 8 9 AMOUNT FOR WHICH THE EMPLOYER MAY BE LIABLE, INCLUDING ANY POTENTIAL FINES OR PENALTIES. (II) AN EMPLOYER MUST RESPOND WITHIN FOURTEEN DAYS AFTER THE COMPLAINT IS SENT. 10 (III) THE DIVISION SHALL ISSUE A DETERMINATION WITHIN NINETY 11 DAYS AFTER THE EMPLOYER'S RECEIPT OF THE COMPLAINT UNLESS THE 12 DIVISION EXTENDS THE TIME PERIOD BY PROVIDING ADVANCE WRITTEN 13 NOTICE TO THE EMPLOYEE AND EMPLOYER STATING GOOD CAUSE FOR THE 14 EXTENSION OF TIME. 15 (b) IF THE DIVISION DOES NOT FIND A VIOLATION BASED ON THE 16 WAGE COMPLAINT AND ANY RESPONSE, INCLUDING THE FAILURE BY THE 17 EMPLOYEE TO PURSUE THE WAGE COMPLAINT, THE DIVISION SHALL ISSUE 18 A NOTICE OF THE DISMISSAL OF THE COMPLAINT AND SEND THE NOTICE TO 19 ALL INTERESTED PARTIES. THE NOTICE MUST SET FORTH THE EMPLOYEE'S 20 RIGHT TO ANY OTHER RELIEF AVAILABLE UNDER THIS SECTION OR SECTION 21 8-4-111.5. 22 (c) IF THE DIVISION DETERMINES THAT AN EMPLOYER HAS 23 VIOLATED THIS ARTICLE FOR NONPAYMENT OF WAGES OR COMPENSATION, 24 THE DIVISION SHALL ISSUE A CITATION AND NOTICE OF ASSESSMENT FOR 25 THE AMOUNT DETERMINED THAT IS OWED, WHICH AMOUNT MUST INCLUDE 26 ALL WAGES AND COMPENSATION OWED, PENALTIES PURSUANT TO SECTION 27 8-4-109, AND ANY FINES PURSUANT TO SECTION 8-4-113. -11- SB14-005 1 (d) TO ENCOURAGE COMPLIANCE BY THE EMPLOYER, IF THE 2 EMPLOYER PAYS THE EMPLOYEE ALL WAGES AND COMPENSATION OWED 3 WITHIN FOURTEEN DAYS AFTER THE CITATION AND NOTICE OF ASSESSMENT 4 IS SENT TO THE EMPLOYER, THE DIVISION MAY WAIVE OR REDUCE ANY 5 FINES IMPOSED PURSUANT TO SECTION 8-4-113 (1) AND REDUCE BY UP TO 6 FIFTY PERCENT PENALTIES IMPOSED PURSUANT TO SECTION 7 EXCEPT THAT THE DIVISION MAY NOT WAIVE ANY FINES OR REDUCE ANY 8 PENALTIES OWED BY A REPEAT WILLFUL VIOLATOR. 8-4-109; 9 (e) UPON PAYMENT BY AN EMPLOYER, AND ACCEPTANCE BY AN 10 EMPLOYEE, OF ALL WAGES, COMPENSATION, AND PENALTIES ASSESSED BY 11 THE DIVISION IN A CITATION AND NOTICE OF ASSESSMENT ISSUED TO THE 12 EMPLOYER, THE PAYMENT SHALL CONSTITUTE A FULL AND COMPLETE 13 SATISFACTION BY THE EMPLOYER AND BAR THE EMPLOYEE FROM 14 INITIATING OR PURSUING ANY CIVIL ACTION OR OTHER ADMINISTRATIVE 15 PROCEEDING BASED ON THE WAGE COMPLAINT ADDRESSED BY THE 16 CITATION AND NOTICE OF ASSESSMENT UNLESS THE EMPLOYEE ELECTS TO 17 TERMINATE 18 SUBSECTION (3) OF THIS SECTION. THE DIVISION'S ADMINISTRATIVE PROCEDURE UNDER 19 (3) AN EMPLOYEE WHO HAS FILED A WAGE COMPLAINT WITH THE 20 DIVISION PURSUANT TO SUBSECTION (2) OF THIS SECTION MAY ELECT TO 21 TERMINATE THE DIVISION'S ADMINISTRATIVE PROCEDURE WITHIN 22 THIRTY-FIVE DAYS AFTER THE ISSUANCE OF THE DETERMINATION OF 23 COMPLIANCE OR CITATION AND NOTICE OF ASSESSMENT BY PROVIDING A 24 NOTICE TO THE DIVISION. AN EMPLOYEE WHO TERMINATES THE DIVISION'S 25 ADMINISTRATIVE PROCEDURE PRESERVES ANY PRIVATE RIGHT OF ACTION 26 THE EMPLOYEE MAY HAVE. UPON RECEIPT OF THE NOTICE, THE DIVISION 27 SHALL IMMEDIATELY DISCONTINUE ITS ACTION AGAINST THE EMPLOYER -12- SB14-005 1 AND REVOKE ANY CITATION AND NOTICE OF ASSESSMENT SENT. 2 (4) A WAGE COMPLAINT FILED PURSUANT TO SUBSECTION (2) OF 3 THIS SECTION DOES NOT REQUIRE A WRITTEN DEMAND AS DESCRIBED IN 4 SECTION 8-4-109 (3) (c). 5 (5) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE 6 RIGHT OF THE DIVISION TO PURSUE ANY ACTION AVAILABLE WITH RESPECT 7 TO AN EMPLOYEE THAT IS IDENTIFIED AS A RESULT OF A WAGE COMPLAINT 8 OR WITH RESPECT TO AN EMPLOYER IN THE ABSENCE OF A WAGE 9 COMPLAINT. 10 (6) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE 11 RIGHT 12 ADMINISTRATIVE PROCEEDING FOR ANY CLAIMS OTHER THAN THOSE 13 CONSIDERED BY THE DIVISION IN THE EMPLOYEE'S WAGE COMPLAINT. THE 14 CLAIMS CONSIDERED BY THE DIVISION IN THE EMPLOYEE'S WAGE 15 COMPLAINT ARE SUBJECT TO THE LIMITATIONS SET FORTH IN PARAGRAPH 16 (e) 17 SECTION. OF THE EMPLOYEE OF SUBSECTION (2) TO PURSUE ANY CIVIL OF THIS SECTION AND SUBSECTION ACTION (3) OR OF THIS 18 (2) (7) Nothing in this article shall be construed to limit the 19 authority of the district attorney of any county or city and county or the 20 city attorney of any city to prosecute actions for such violations of this 21 article as may come to his or her knowledge, or to enforce the provisions 22 of this article independently and without specific direction of the director, 23 or to limit the right of any wage claimant to sue directly or through an 24 assignee for any wages or penalty due him or her under the provisions of 25 this article. 26 27 SECTION 6. In Colorado Revised Statutes, add 8-4-111.5 as follows: -13- SB14-005 1 8-4-111.5. Hearing officer review and appeals of 2 administrative actions. (1) PURSUANT TO POLICIES ESTABLISHED BY THE 3 DIRECTOR BY RULE, ANY INTERESTED PARTY WHO IS DISSATISFIED WITH 4 THE DIVISION'S DECISION ON A WAGE COMPLAINT FILED PURSUANT TO 5 SECTION 6 THIRTY-FIVE DAYS AFTER THE DIVISION'S DECISION IS SENT. IF NO REQUEST 7 IS FILED WITHIN THE THIRTY-FIVE-DAY PERIOD, THE DIVISION'S DECISION 8 IS FINAL. 8-4-111 (2) MAY FILE A REQUEST FOR A HEARING WITHIN 9 (2) (a) IF A REQUEST IS FILED PURSUANT TO SUBSECTION (1) OF 10 THIS SECTION, THE DIRECTOR SHALL DESIGNATE A HEARING OFFICER. THE 11 HEARING OFFICER SHALL HAVE THE POWER AND AUTHORITY TO CALL, 12 PRESIDE AT, AND CONDUCT HEARINGS. IN THE DISCHARGE OF THE DUTIES 13 IMPOSED BY THIS ARTICLE, THE HEARING OFFICER HAS THE POWER TO 14 ADMINISTER OATHS AND AFFIRMATIONS, TAKE DEPOSITIONS, CERTIFY TO 15 OFFICIAL ACTS, PERMIT PARTIES TO PARTICIPATE BY TELEPHONE, AND 16 ISSUE SUBPOENAS TO COMPEL THE ATTENDANCE OF WITNESSES AND THE 17 PRODUCTION OF BOOKS, PAPERS, CORRESPONDENCE, MEMORANDA, AND 18 OTHER RECORDS DEEMED NECESSARY AS EVIDENCE IN CONNECTION WITH 19 A DISPUTED CLAIM PURSUANT TO THIS ARTICLE. 20 (b) (I) IN CASE OF A FAILURE TO OBEY A SUBPOENA ISSUED TO ANY 21 PERSON BY THE HEARING OFFICER, UPON APPLICATION BY THE DIVISION OR 22 ITS DULY AUTHORIZED REPRESENTATIVE, ANY COURT OF THIS STATE HAS 23 JURISDICTION TO ISSUE TO THE PERSON AN ORDER REQUIRING HIM OR HER 24 TO APPEAR BEFORE THE HEARING OFFICER TO PRODUCE EVIDENCE OR GIVE 25 TESTIMONY TOUCHING THE MATTER UNDER INVESTIGATION OR IN 26 QUESTION. THE COURT MAY ISSUE AN ORDER OF CONTEMPT TO A PERSON 27 WHO FAILS TO OBEY THE ORDER. -14- SB14-005 1 (II) IT IS A MISDEMEANOR FOR A PERSON WHO, WITHOUT JUST 2 CAUSE, FAILS OR REFUSES TO ATTEND AND TESTIFY OR TO ANSWER ANY 3 LAWFUL INQUIRY OR TO PRODUCE BOOKS, PAPERS, CORRESPONDENCE, 4 MEMORANDA, AND OTHER RECORDS IN OBEDIENCE TO A SUBPOENA OF THE 5 HEARING OFFICER, AND, UPON CONVICTION THEREOF, THE PERSON SHALL 6 BE PUNISHED BY A FINE OF NOT MORE THAN TWO HUNDRED DOLLARS, OR 7 BY IMPRISONMENT IN THE COUNTY JAIL FOR NOT MORE THAN SIXTY DAYS, 8 OR BY BOTH SUCH FINE AND IMPRISONMENT. EACH DAY THE FAILURE OR 9 REFUSAL CONTINUES IS A SEPARATE OFFENSE. 10 (c) A PERSON MAY NOT BE EXCUSED FROM ATTENDING AND 11 TESTIFYING OR FROM PRODUCING BOOKS, PAPERS, CORRESPONDENCE, 12 MEMORANDA, AND OTHER RECORDS BEFORE A HEARING OFFICER OR IN 13 OBEDIENCE TO THE SUBPOENA OF THE HEARING OFFICER ON THE GROUND 14 THAT THE TESTIMONY OR EVIDENCE, DOCUMENTARY OR OTHERWISE, 15 REQUIRED OF HIM OR HER MAY TEND TO INCRIMINATE THE PERSON OR 16 SUBJECT THE PERSON TO A PENALTY OR FORFEITURE. BUT A PERSON SHALL 17 NOT BE PROSECUTED OR SUBJECTED TO ANY PENALTY OR FORFEITURE FOR 18 OR ON ACCOUNT OF ANY TRANSACTION, MATTER, OR THING CONCERNING 19 WHICH HE OR SHE IS COMPELLED, AFTER HAVING CLAIMED HIS OR HER 20 PRIVILEGE AGAINST SELF-INCRIMINATION, TO TESTIFY OR PRODUCE 21 EVIDENCE, DOCUMENTARY OR OTHERWISE; EXCEPT THAT THE INDIVIDUAL 22 TESTIFYING IS NOT EXEMPT FROM PROSECUTION AND PUNISHMENT FOR 23 PERJURY IN THE FIRST DEGREE COMMITTED IN SO TESTIFYING. 24 (3) (a) THE HEARING OFFICER, AFTER AFFORDING ALL INTERESTED 25 PARTIES A REASONABLE OPPORTUNITY FOR A FAIR HEARING PURSUANT TO 26 THE PROVISIONS OF THIS ARTICLE AND THE ADMINISTRATIVE PROCEDURES 27 OF THE DIVISION, SHALL MAKE A DECISION ON EACH RELEVANT ISSUE -15- SB14-005 1 RAISED, INCLUDING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND AN 2 ORDER. 3 (b) EVIDENCE AND REQUIREMENTS OF PROOF IN A HEARING 4 CONDUCTED PURSUANT TO THIS SECTION MUST CONFORM, TO THE EXTENT 5 PRACTICABLE, WITH THOSE IN CIVIL NONJURY CASES IN THE DISTRICT 6 COURTS OF THIS STATE. HOWEVER, WHEN NECESSARY TO DO SO IN ORDER 7 TO ASCERTAIN FACTS AFFECTING THE SUBSTANTIAL RIGHTS OF THE 8 PARTIES TO THE PROCEEDING, THE PERSON CONDUCTING THE HEARING 9 MAY RECEIVE AND CONSIDER EVIDENCE NOT ADMISSIBLE UNDER SUCH 10 RULES IF THE EVIDENCE POSSESSES PROBATIVE VALUE COMMONLY 11 ACCEPTED BY REASONABLE AND PRUDENT PERSONS IN THE CONDUCT OF 12 THEIR AFFAIRS. OBJECTIONS TO EVIDENTIARY OFFERS MAY BE MADE AND 13 MUST BE NOTED IN THE RECORD. 14 EFFECT TO THE RULES OF PRIVILEGE RECOGNIZED BY LAW. HE OR SHE MAY 15 EXCLUDE INCOMPETENT AND UNDULY REPETITIOUS EVIDENCE. 16 HEARING OFFICER MAY ACCEPT DOCUMENTARY EVIDENCE IN THE FORM OF 17 A COPY OR EXCERPT IF THE ORIGINAL IS NOT READILY AVAILABLE; EXCEPT 18 THAT, UPON REQUEST, THE PARTY SHALL BE GIVEN AN OPPORTUNITY TO 19 COMPARE THE COPY WITH THE ORIGINAL. THE DIVISION MAY UTILIZE ITS 20 EXPERIENCE, TECHNICAL COMPETENCE, AND SPECIALIZED KNOWLEDGE IN 21 THE EVALUATION OF THE EVIDENCE PRESENTED. THE PROVISIONS OF THE 22 "STATE ADMINISTRATIVE PROCEDURE ACT", 23 C.R.S., AND PARTICULARLY SECTIONS 24-4-105 AND 24-4-106, C.R.S., DO 24 NOT APPLY TO HEARINGS AND COURT REVIEW UNDER THIS ARTICLE. 25 HOWEVER, THE RULE-MAKING PROVISIONS OF SECTION 24-4-103, C.R.S., 26 SHALL APPLY TO THIS ARTICLE. 27 (c) WHEN THE HEARING OFFICER SHALL GIVE ARTICLE 4 THE OF TITLE 24, THE SAME OR SUBSTANTIALLY SIMILAR EVIDENCE IS -16- SB14-005 1 RELEVANT AND MATERIAL TO THE MATTERS AT ISSUE IN CLAIMS BY MORE 2 THAN ONE INDIVIDUAL OR IN CLAIMS BY A SINGLE INDIVIDUAL WITH 3 RESPECT TO TWO OR MORE CLAIMED VIOLATIONS, IF, IN THE JUDGMENT OF 4 THE HEARING OFFICER, CONSOLIDATION OF ONE OR MORE PROCEEDINGS 5 WOULD NOT PREJUDICE ANY INTERESTED PARTY, THE HEARING OFFICER 6 MAY: 7 (I) CONDUCT HEARINGS AT THE SAME TIME AND PLACE; 8 (II) CONDUCT JOINT HEARINGS; 9 (III) MAKE A SINGLE RECORD OF THE PROCEEDINGS; AND 10 11 (IV) CONSIDER EVIDENCE INTRODUCED WITH RESPECT TO ONE PROCEEDING AS IF INTRODUCED IN THE OTHERS. (d) THE DIVISION SHALL KEEP A FULL AND COMPLETE RECORD OF 12 13 ALL PROCEEDINGS IN CONNECTION WITH THE WAGE COMPLAINT. 14 TESTIMONY AT ANY HEARING UPON A WAGE COMPLAINT MUST BE 15 RECORDED BUT NEED NOT BE TRANSCRIBED UNLESS THE WAGE COMPLAINT 16 IS PRESENTED FOR FURTHER REVIEW. 17 PROVIDE ALL INTERESTED PARTIES WITH COPIES OF THE HEARING OFFICER'S 18 DECISION. THE ALL DIVISION SHALL PROMPTLY 19 (4) FOR THE CONVENIENCE AND NECESSITY OF THE EMPLOYEE OR 20 THE EMPLOYER, THE DIVISION SHALL PERMIT PARTIES TO PARTICIPATE IN 21 HEARINGS BY TELEPHONE, INCLUDING IN SITUATIONS IN WHICH THE 22 PARTIES WOULD OTHERWISE BE REQUIRED TO TRAVEL TO LOCATIONS OF 23 THE DIVISION FROM OUTSIDE THE GENERAL VICINITY OF SUCH LOCATIONS. 24 (5) AN INTERESTED PARTY WHO IS DISSATISFIED WITH THE 25 HEARING OFFICER'S DECISION MAY COMMENCE A CIVIL ACTION IN ANY 26 COUNTY OR DISTRICT COURT OF COMPETENT JURISDICTION. THE DIRECTOR 27 SHALL PRESCRIBE AN ADMINISTRATIVE -17- PROCEDURE FOR THE SB14-005 1 TRANSCRIPTION OF TESTIMONY. THE CIVIL ACTION IN A COURT IS DE NOVO. 2 SECTION 7. In Colorado Revised Statutes, amend 8-4-113 as 3 4 follows: 8-4-113. Fines pursuant to enforcement - wage theft 5 enforcement fund - created. (1) (a) If a case against an employer is 6 enforced pursuant to section 8-4-111, any employer who without good 7 faith legal justification fails to pay the wages of each of his or her 8 employees shall forfeit to the people of the state of Colorado an A FINE IN 9 AN amount determined by the director OR HEARING OFFICER but no more 10 than the sum of fifty dollars per day for each such failure to pay each 11 employee, commencing from the date that such wages first became due 12 and payable. to be recovered by order of the director in a hearing held 13 pursuant to section 24-4-105, C.R.S. For the convenience and necessity 14 of the parties or their representatives, the division is authorized to conduct 15 such hearing by telephone if the employer would otherwise be required 16 to travel to locations of the division of labor from outside the general 17 vicinity of such locations. THE DIVISION MAY COLLECT THE FINE THROUGH 18 ITS CITATION AND NOTICE OF ASSESSMENT ISSUED PURSUANT TO SECTION 19 8-4-111 (2) 20 8-4-111.5. OR AFTER A HEARING CONDUCTED PURSUANT TO SECTION 21 (b) THE DIRECTOR OR HEARING OFFICER SHALL IMPOSE A FINE OF 22 TWO HUNDRED FIFTY DOLLARS ON AN EMPLOYER WHO FAILS TO RESPOND 23 TO A NOTICE OF COMPLAINT OR TO ANY OTHER NOTICE FROM THE DIVISION 24 TO WHICH A RESPONSE IS REQUIRED. THE DIRECTOR OR HEARING OFFICER 25 MAY WAIVE OR REDUCE THE FINE ONLY IF HE OR SHE FINDS GOOD CAUSE 26 FOR AN EXTENSION OF THE TIME FOR THE EMPLOYER TO FILE THE 27 RESPONSE. -18- SB14-005 1 (2) A certified copy of any final order of the director, imposing a 2 fine or penalty CITATION, NOTICE OF ASSESSMENT, OR ORDER IMPOSING 3 WAGES DUE, FINES, OR PENALTIES 4 with the clerk of the district ANY court having jurisdiction over the parties 5 at any time after the entry of the order. The certified copy shall be 6 recorded by the clerk of the district court in the judgment book of said 7 court and entry thereof made in the judgment docket, and it shall 8 thenceforth have all the effect of a judgment of the district court, and 9 execution may issue thereon out of said court as in other cases. All fines 10 and penalties collected shall be paid to the division and transmitted to the 11 state treasurer for credit to the general fund. (3) (a) THE 12 pursuant to this article, may be filed DIVISION SHALL TRANSMIT ALL FINES COLLECTED 13 PURSUANT TO THIS SECTION TO THE STATE TREASURER, WHO SHALL 14 CREDIT THE SAME TO THE WAGE THEFT ENFORCEMENT FUND, WHICH FUND 15 IS CREATED AND REFERRED TO IN THIS SECTION AS THE "FUND". 16 MONEYS IN THE FUND ARE SUBJECT TO ANNUAL APPROPRIATION BY THE 17 GENERAL ASSEMBLY TO THE DIVISION FOR THE DIRECT AND INDIRECT 18 COSTS ASSOCIATED WITH IMPLEMENTING THIS ARTICLE. THE 19 (b) THE STATE TREASURER MAY INVEST ANY MONEYS IN THE FUND 20 NOT EXPENDED FOR THE PURPOSE OF THIS ARTICLE AS PROVIDED BY LAW. 21 THE STATE TREASURER SHALL CREDIT ALL INTEREST AND INCOME DERIVED 22 FROM THE INVESTMENT AND DEPOSIT OF MONEYS IN THE FUND TO THE 23 FUND. 24 THE FUND AT THE END OF A FISCAL YEAR REMAIN IN THE FUND AND MUST 25 NOT BE CREDITED OR TRANSFERRED TO THE GENERAL FUND OR ANOTHER 26 FUND. 27 ANY UNEXPENDED AND UNENCUMBERED MONEYS REMAINING IN SECTION 8. In Colorado Revised Statutes, amend 8-6-118 as -19- SB14-005 1 follows: 2 8-6-118. Recovery of balance of minimum wage. An employee 3 receiving less than the legal minimum wage applicable to such employee 4 is entitled to recover in a civil action the unpaid balance of the full 5 amount of such minimum wage, together with costs of suit REASONABLE 6 ATTORNEY FEES AND COURT COSTS, 7 work for a lesser wage. notwithstanding any agreement to 8 SECTION 9. Act subject to petition - effective date. This act 9 takes effect January 1, 2015; except that, if a referendum petition is filed 10 pursuant to section 1 (3) of article V of the state constitution against this 11 act or an item, section, or part of this act within the ninety-day period 12 after final adjournment of the general assembly, then the act, item, 13 section, or part will not take effect unless approved by the people at the 14 general election to be held in November 2014 and, in such case, will take 15 effect on January 1, 2015, or on the date of the official declaration of the 16 vote thereon by the governor, whichever is later. -20- SB14-005