Colorado recently expanded whistleblower protections to state law, and employers must ensure their health and safety protocols are fully compliant if they are to avoid costly litigation.
Under the new law signed by Governor Jared Polis on May 31, both employees 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 committing a workplace violation of a government health or safety regulation or a significant threat to workplace health or safety.
The law, which went into effect immediately, extends Colorado’s Emergency Health Whistleblower Act (PHEW) into large new territories.
What do you need to know about this new law and what should you do to prepare yourself?
Summary of key elements
The PHEW Act was first enacted in 2020, allowing employees to report occupational health or safety concerns related to the COVID-19 pandemic to CDLE. Now the law has been expanded to include any violation of a rule, regulation or other significant health or safety threat.
Employers with at least five contractors or self-employed workers are subject to the expanded PHEW law.
The new law does not oblige employers to address workers’ health or safety concerns. But companies cannot fire or take other negative action against the worker for raising such a concern, provided the concern was reasonable and in good faith.
The law allows workers to voluntarily wear their PPE, as long as they are still able to perform their job duties safely.
Expensive complaints from whistleblowers
The recently enacted PHEW law allows whistleblowers to file complaints with the CDLE and then ultimately the state court. Whistleblowers also have a number of federal laws that they can submit to the United States Department of Labor.
Under section 105 (c) of the Mine Act, miners who believe they have been discharged or otherwise discriminated against in retaliation for expressing health or safety concerns can file a complaint with the United States Secretary of Labor.
Under Section 11 (c) of the OSH Act, employees on an OSHA-covered construction site who believe they have been discharged or otherwise discriminated against can make a similar health and safety complaint.
If an employee believes there are multiple reasons for his discipline or dismissal, he can also apply to the Federal Equal Employment Opportunity Commission or local state agency for discrimination. These complaints are typically not about safety concerns, but claim that, in addition to safety, the employee’s discipline or dismissal was due to race, sex, or religion.
Whistleblower complaints can be costly and time-consuming for a company. They typically involve many managers or frontline staff and can raise a multitude of specific incidents, requiring many witnesses to refute or defend.
An employee can report the same incidents or other incidents involving the same witnesses in multiple complaints filed with various state or federal agencies.
An employer may have to defend itself in front of multiple agencies at the same time by filing multiple position papers and subjecting the same witnesses to various interviews on similar topics.
What employers can do to prepare
No employer is immune from a whistleblower complaint. Disgruntled employees can use various administrative processes to try to force a settlement payment.
Employers can defend against this type of complaint by carefully documenting the basis of a disciplinary decision or a dismissal decision. Being able to illustrate consistency with other employee decisions and that any decision was unrelated to an employee’s previous safety complaint will be critical in establishing a defense against any complaint.
Additionally, there are multiple efficiencies in having a single company handling both your whistleblower and discrimination cases. The documents were withdrawn, the witnesses were questioned and the defenses were developed. This approach helps to maintain consistency and avoid duplication of effort. Perhaps most importantly, any inconsistencies in the employee’s arguments are quickly discovered and can be used in both administrative proceedings.
Kristin RB White is an attorney for Fisher Phillips in Denver. © 2022 Fisher Phillips. All rights reserved. Reissued with permission.