Colorado recently expanded the protection of plaintiffs to state law, and employers must ensure that their health and safety protocols are fully complied with if they want to avoid costly litigation.
Under a new law signed by Governor Jared Polis on May 31, workers and independent contractors can now file a complaint with the Colorado Department of Labor and Employment (CDLE) if they believe it is reasonable and in good faith that their employer is committed. violation of a government health or safety rule in the workplace or a serious occupational health or safety threat.
The law, which went into effect immediately, extends the Colorado Public Health Emergency Deputies Act (PHEW) to new territories.
What do you need to know about this new law, and what do you need to do to prepare for it?
Summary of key elements
The PHEW Act was initially enacted in 2020, allowing employees to address occupational health or safety concerns related to the COVID-19 pandemic to the CDLE. Now the law has been expanded to violate a health or safety rule, regulation or any significant health or safety threat.
Employers with at least five independent contractors or employees are subject to the extended PHEW law.
The new law does not oblige employers to address an employee’s health or safety concerns. But companies cannot dismiss or take any other harmful action against the employee for raising that concern, as long as the concern is reasonable and in good faith.
The law allows employees to carry their PPE voluntarily, as long as they are able to perform their job safely.
Expensive whistleblower complaints
The recently passed PHEW law allows complainants to file complaints with the CDLE and eventually in state courts. Whistleblowers also have a number of federal laws that can be filed with the U.S. Department of Labor.
Under section 105 (c) of the Mining Act, miners who believe they have been discharged or otherwise discriminated against because of retaliation for health or safety concerns may file a complaint with the U.S. Department of Labor.
Under Section 11.c) of the OSH Act, those who believe that employees of an OSHA-covered workplace have been discharged or otherwise discriminated against may file a similar health and safety complaint.
If an employee believes that there are multiple reasons for his or her discipline or termination, he or she may also file with the Federal Equal Employment Opportunity Commission or the local discrimination agency. These complaints do not usually involve safety concerns, but in addition to safety, they allege that the employee’s discipline or termination was due to his or her race, sex, or religion.
Whistleblower complaints can be costly and time consuming for a business. For the most part, many managers or front-line staff are involved and can cause a number of specific incidents that many witnesses can refute or protect.
An employee may raise other incidents with the same or similar facts in multiple complaints filed with various state or federal agencies.
An employer may have to defend himself in front of several agencies at the same time by presenting several position papers and placing the same witnesses in different interviews dealing with similar issues.
What employers can do to prepare them
No employer is exempt from the complainant’s complaint. Disadvantaged employees may use different administrative processes to enforce a settlement payment.
Employers can defend against these types of complaints by properly documenting the basis for a disciplinary decision or termination decision. Being able to express consistency with the decisions of other employees and that any decision has nothing to do with an employee’s prior safety complaint will be key to establishing the defense of any complaint.
In addition, there are multiple efficiencies for your complainant and a company that handles discrimination cases. Documents have been extracted, witnesses interviewed and defenses developed. This approach helps maintain consistency and redoubles efforts. Perhaps most importantly, inconsistencies in the employee’s arguments are quickly identified and can be used in both administrative procedures.
Kristin RB is a attorney for White Fisher Phillips in Denver. © 2022 Fisher Phillips. All rights reserved. Republished with permission.