Colorado extends protection to whistleblowers | Fisher Phillips

Colorado has recently expanded the protection of whistleblowers at the state level – and employers need to make sure their health and safety protocols are fully compatible if they want to avoid costly litigation. Under a new law signed by Gov. 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 have a reasonable and conscientious belief that their employer or principal is committed. violation of a government health or safety rule in the workplace or a significant threat to health or safety at work. The law, which came into force immediately, extends the Colorado Public Health Emergency Signals Act (PHEW) to vast new territories. What do you need to know about this new law – and what do you need to do to prepare?

Summary of key parts of the law

The PHEW Act was originally passed in 2020, allowing employees to raise health or safety concerns at work related to the COVID-19 pandemic before the CDLE. Now the law has been extended to inclusive all kinds violation of a rule, health or safety regulation or other significant threat to health or safety. Employers or companies with at least five independent contractors or workers are subject to the extended PHEW law.

The new law does not oblige employers and businesses to deal with the health or safety of workers. But they may not dismiss or take other adverse action against the worker to raise such concerns, as long as the concern is reasonable and conscientious.

The law also allows workers to voluntarily carry their own PPE, as long as they are able to perform their duties safely.

Expensive complaints from whistleblowers

The recently enacted PHEW law allows appeals to be filed with the CDLE and then eventually filed with the state court. Informants also have a number of federal laws that they can file with the Federal Ministry of Labor.

  • Under section 105 (c) of the Mines Act, a miner who considers that he has been dismissed or otherwise discriminated against in retaliation for expressing health or safety concerns may file a complaint with the Minister of Labor.
  • Pursuant to Section 11 (c) of the OSH Act, an OSHA-covered employee who considers that he or she has been dismissed or otherwise discriminated against may file a similar safety and health complaint.
  • If an employee believes that there are many reasons for the discipline or its termination, he may also apply to the Equal Employment Opportunity Commission (EEOC) or the local state discrimination agency. These complaints do not usually involve safety concerns, but are claimed to be due to their race, gender or religion in addition to the safety, discipline or termination of the employee.

Complaints from whistleblowers can be costly and time consuming for a company. They usually involve many managers or front-line staff and can raise a number of specific incidents that require many witnesses to refute or defend themselves. An employee may raise the same incidents or other incidents involving the same witnesses in multiple complaints filed with different state or federal agencies.

The employer may have to defend himself in front of several agencies at the same time, submitting multiple position documents and subjecting the same witnesses to different interviews covering similar topics.

What employers can do to prepare

No employer is immune from a whistleblower complaint. Dissatisfied employees can use various administrative processes to try to impose payment for settlement.

Employers can defend against these types of complaints by documenting in detail the basis for an employee’s disciplinary decision or termination decision. The ability to illustrate consistency with other employee decisions and that each decision was not related to a previous employee safety complaint will be crucial in establishing protection against any complaint.

In addition, there are numerous opportunities for efficiency with a solid management of both whistleblower and discrimination cases. Documents were withdrawn, witnesses were questioned and defenses were developed. This approach helps maintain consistency and avoid duplication of effort. Perhaps most importantly, any inconsistencies in the employee’s arguments are quickly detected and can be used in both administrative proceedings.

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