CDLE finalizes new WARNING rule

As noted in a prior blog post, the CDLE has finalized a crop of new rules on a variety of topics. This post addresses its WARNING (Whistleblower, Anti-Retaliation, Non-Interference, and Notice-Giving) Rules, effective January 1, 2021.  The WARNING Rules implement Colorado’s new whistleblower and related notice laws. Highlights of the rules include the following:

• An explanation of the posting obligation that requires employers to post the state’s HFWA poster  with translations available from the CDLE for any languag espoken by at least 5% of the workforce in a conspicuous location in each workplace where individuals work, such as bulletin boards or break rooms, by time clocks or at entrances. In the event that is not possible Rule 4.1.4 describes a process for providing the actual poster to each new hire or on “a web-based platform.”
• An explanation of the “reasonable” and “good faith” requirements a whistleblower must meet to be protected, to include under Rule 5.1.2 a statement by the worker, without necessarily citing a specific rule or guideline, “what action, condition, or situation they believe constitutes a qualifying violation of a rule regarding, or significant threat to workplace health or safety.”
• An explanation in Rule 5.2.3 that, while Colorado’s new law permits workers to insist on using their own more protective PPE, such PPE must itself be sourced “from a reliable provider” if the company has provided PPE compliant with federal, state and local recommendations that was sourced from a reliable provider.
• Perhaps most controversially, an explanation in Rule 5.2.4 that whistleblower cases under this new law will entail a lower burden of proof for an employee who seeks to prove they were constructively discharged than most other whistleblower laws require. The worker will be able to prove a constructive discharge if he proves he blew the proverbial whistle in compliance with the new rules, including Rule 4.1.4 (above), the company failed to remedy the concern “immediately,” continuing to work would have posed a “substantial threat to health or safety for any person,” and he quit as a result thereof. In its prefatory Statement explaining the rule, the CDLE confirms this means that a plaintiff will not be required to prove the employer took an adverse employment action against the plaintiff; in other words, it will not be required to prove discharge, demotion, cut in pay, hours, etc.

Employers in Colorado should take time to familiarize themselves with these new rules.