INFO #5A Retaliation Protections

Division of Labor Standards and Statistics

633 17th Street, Denver, CO 80202-2107

303-318-8441 | www

.ColoradoLaborLaw.gov | www.LeyesLaboralesDeColorado.gov

Interpretive Notice & Formal Opinion (“INFO”) #5A:

What’s “Retaliation” or “Interference”: What Activity Is Protected? What Acts Are Illegal?

Overview

● Not all employer actions an employee believes unfair are the sort of retaliation or interference that’s

illegal. Under the “employment at will” rule, employer decisions can be for any reason, whether fair or unfair

— unless an employer agreed, for example, to fire only for good cause, or after progressive discipline, etc.

● But various laws prohibit employer actions with certain motives, or that interfere with rights. Examples:

○ a firing for taking paid leave they had a right to is illegal retaliation for exercising rights; and

○ a firing to prevent taking paid leave is illegal interference with exercising rights; but

○ a firing for not being a football fan may be unfair, but isn’t illegal.

● To explain what does and doesn’t count as illegal retaliation or interference, this INFO explains:

○ what employee actions are protected from retaliation or interference — called “protected activity”; and

○ what employer actions are impactful (“adverse”) enough to be illegal if retaliatory.

● This INFO is limited to retaliation or interference as to rights under laws this Division covers:

○ for exercising rights to paid leave for health or safety needs under the Healthy Families and

Workplaces Act (“HFWA”), C.R.S. Title 8, Article 13.3, Part 4);

○ for exercising rights to whistleblowing or other expression on health or safety, under the Protected

Health/Safety Expression and Whistleblowing Law (“PHEW”), C.R.S. Title 8, Article 14.4); and

○ for rights as to wages or hours, under the Colorado Wage Act (“CWA”), C.R.S. § 8-4-120.

● This INFO does not cover certain retaliation or interference protections:

○ under laws that are covered in other INFOs specific to those laws, such as exercising rights as to:

● agricultural labor — covered in the INFO #12 series, or

● union-related or other concerted activity among employees — covered in the INFO #15 series; or

○ under laws this Division doesn’t cover — including federal laws and state laws covered by other state

agencies, such as the Colorado Anti-Discrimination Act, covered by the Colorado Civil Rights Division.

(I) What Employee Actions Are Protected Against Retaliation or Interference?

(A) As to health or safety under the Protected Health/Safety Expression and Whistleblowing Law (“PHEW”).

(1) Types of protected activity. PHEW protects workers against retaliation or interference for:

● Opposition — “opposing any practice the worker reasonably believes is unlawful” under PHEW.

● Participation — “a charge, testifying, assisting, or participating in any manner in an investigation,

proceeding, or hearing” as to something “the worker reasonably believes ... unlawful” under PHEW.

● Concerns — raising a “reasonable concern about workplace violations of government health or

safety rules, or about an otherwise significant workplace threat to health or safety.”

PHEW at first covered only public health emergencies, but now covers any health or safety violations or significant threats.

Employees as well as independent contractors of a business with five or more contractors. C.R.S. § 8-14.4-101(5)(b).

INFOs are not binding law, but are the Division’s officially approved opinions and notices to employers, employees, and others on how

the Division applies and interprets statutes and rules. The Division continues to post and update INFOs on various topics; for up-to-date

INFOs, rules, and other materials, visit the Division’s

Laws, Regulations, & Guidance page. Last updated Feb. 15, 2024

INFO #5A: What’s “Retaliation” or “Interference”: Protected Activity & Adverse Actions p.2/4

(2) Limits on health/safety protected activity rights.

● Non-retaliation only: The principal isn’t required to agree with a worker’s concern, or take

action the worker requests, it just can’t retaliate with adverse action against the worker for

raising the concern or request — for example, disciplining, firing, or cutting pay or hours.

● Illegal health disclosures: Workers aren’t protected if their activity shared individual health

information in a way that is illegal under state or federal law.

● Narrower protection of “concerns”: Compared to opposition or participation, “concerns” are less

automatically protected — only if: (1) made to certain persons (a principal or their agent, other

workers, a government agency, or the public); (2) specific as to the violation or threat; and (3)

related to a principal with control over the “conditions giving rise to the threat or violation.”

(3) Personal protective equipment use: Workers can’t be retaliated against for voluntarily wearing their

own “personal protective equipment, such as a mask, faceguard, or gloves,” at work — if that PPE:

● “provides a higher level of protection” than the principal’s, including that it (a) doesn’t give others

less protection (e.g., masks with vents), and (b) is cleaned or replaced, if the principal’s PPE is;

● is “recommended by a federal, state, or local public health agency with jurisdiction”; and

● “does not render the worker incapable of performing” their job or duties.

Example 1: If a principal provides no face covering when one is needed due to an airborne pathogen, then

a worker’s use of any face covering is protected, unless the principal proves it is worse than none at all.

Example 2: If a principal provides PPE from a known, reliable provider that satisfies all applicable health

agency recommendations, then a worker’s PPE of the same type must be from a reliable provider.

(B) As to paid sick leave under the Healthy Families and Workplaces Act (“HFWA”), protected activity is:

● requesting or taking paid leave under HFWA, or attempting to exercise other HFWA rights;

● informing another person about, or supporting their exercise of, their HFWA rights; or

● filing a HFWA complaint, or cooperating in any investigation or other proceeding about HFWA rights.

Example 3: An employee requested sick leave, but it turns out they didn’t have enough leave accrued. The

employer agreed to allow remote work, to avoid the need for leave — but then the employer fired the

employee for requesting leave they weren’t entitled to. The firing was illegal, because a law requiring leave

for health reasons “protects the right of an employee to inquire about and request leave even if it turns out

that she is not entitled to such leave”; otherwise, employees who believe they need leave “would be

discouraged from taking authorized initial steps — including preparing or formulating a request.”

Milman v. Fieger & Fieger, P.C., 58 F.4th 860 (6th Cir. 2023) (termination of employee for requesting leave for sick child

violated FMLA even though evidence confirmed the child’s condition did not qualify for FMLA leave).

Colorado WARNING Rules, 7 CCR 1103-11, Rule 5.2.3 (covering both examples as “Special Cases” of the PPE rules).

C.R.S. § 8-14.4-102(3); Colorado WARNING Rules, 7 CCR 1103-11, Rule 5.2.

C.R.S. § 8-14.4-102(1); Colorado WARNING Rules, 7 CCR 1103-11, Rule 5.1.2.

C.R.S. § 8-14.4-102(5)-(6).

Last updated Feb. 15, 2024

INFO #5A: What’s “Retaliation” or “Interference”: Protected Activity & Adverse Actions p.3/4

● complaints — whether formal or informal, and whether written or verbal — or just offering

evidence (whether testimony, documents, or other),

● to any person or entity — such as a court, government labor agency, or employer or principal,

● as to protections under any statute or rule related to wages or hours.

Example 4: An employee doesn’t believe their employer violates any laws but, at a city council hearing,

speaks to support a higher local minimum wage. Their employer fires them for doing so. The employer has

unlawfully retaliated: the employee offered testimony arguing that minimum wage protections under state

law are inadequate, and that a stronger law related to wages and hours is needed at the local level.

(II) What If the Employee or Employer Is Wrong about What They Believe the Other Did?

(A) When an Employee Is Incorrect about Violations or Rights they Claim

● A worker is protected regardless of whether they were correct or incorrect about rights they claim,

or violations they allege — as long as they were reasonable in believing what they said.

● Under this standard, statements are not protected if they were:

○ knowingly false (which includes being made with reckless disregard for their truth or falsity); or

○ were made to intentionally obtain a benefit the employee was not entitled to.

Example 5: An employee verbally tells human resources they weren’t paid overtime for what they believed

to be a 43-hour workweek: 35 hours worked and 8 hours of paid holiday time. The employee is wrong: the

hours counted overtime don’t include paid holiday hours. But firing the employee for claiming overtime

would be retaliatory: it was a wage complaint to an employer that wasn’t unreasonable or in bad faith.

Example 6: An employee is approved for paid leave for a blood test and physical exam. After learning the

employee went bowling and never really had that appointment, the employer (1) withdraws its approval and

(2) fires the employee for dishonesty. The employee files a complaint for (1) denial of paid leave and (2)

retaliation for using HFWA rights. The employer acted lawfully: (1) leave wasn’t for a HFWA purpose, and

(2) the firing wasn’t retaliatory, because the employee’s paid leave claim wasn’t reasonable or in good faith.

(B) When an Employer Retaliates for Protected Activity That Hasn’t Actually Occurred

● Retaliation is unlawful because it’s an unlawful motive for action, and because it deters protected

activity — so it’s unlawful to retaliate against not only those with actual protected activity, but also

○ against those an employer incorrectly believes engaged in protected activity, as well as

○ against those an employer believes may engage (or may have engaged) in protected activity.

E.g., C.R.S. § 8-4-120(1)(b) (protecting employee who “testified or provided other evidence, or may testify or provide

other evidence”) (emphasis added); Heffernan v. City of Paterson, 578 U.S. 266, 272 (2016) (unlawful retaliation includes

terminating an employee based on an incorrect belief that they engaged in protected activity).

C.R.S. § 8-13.3-408 (dishonesty, or intentional misuse of paid leave).

C.R.S. § 8-14.4-102(5)-(6).

C.R.S. § 8-13.3-407(3) (protected even if incorrect, as long as reasonable and in good faith).

C.R.S. § 8-4-120(1); Colorado WARNING Rules, 7 CCR 1103-11, Rule 2.18. Examples of “any law or rule related to

wages or hours” include federal, state, or local provisions on equal pay, prevailing wages or local minimum wages, or child

labor laws on wages or hours. E.g., Christian Walters et al., DLSS Claim #0240-23 (Citation Dec. 6, 2023) (employee’s

text messages to employer complaining of bounced paychecks qualified as protected activity).

Kasten v. Saint-Gobain Perf. Plastics Corp., 536 U.S. 1 (2011) (verbal complaint to supervisor and human resources that

timeclock excluded certain time worked was protected activity of having “filed” a complaint); Cotopaxi Store, Inc., DLSS

Claim #3959-22 (Citation July 14, 2023) (verbal complaint as to wage rights and paid sick rights was protected activity).

Last updated Feb. 15, 2024

INFO #5A: What’s “Retaliation” or “Interference”: Protected Activity & Adverse Actions p.4/4

Example 7: An employer fires an employee because they heard third-hand that the employee may be

considering sending the employer a demand for a bonus the employee believes they should have been

paid. The employer unlawfully retaliated: employees are protected from adverse action based on an

employer’s belief that they may make a complaint or evidence submission related to wages or hours.

(III) What Are “Adverse Actions” Protected Against Retaliation?

(A) Not just termination, but anything that might deter a reasonable worker from engaging in protected

activity, is an unlawful “adverse action” if it retaliates or interferes against protected activity. Examples:

● an actual or constructive discharge, demotion, or other decreases in compensation or duties;

● suspension, discipline, or meaningfully adverse reprimands;

● a hostile work environment; or

● a transfer or duties change an employee reasonably views as less desirable, even if not a demotion.

(B) Because the question is whether an action is adverse enough that it might deter protected activity,

non-work-related actions against an employee can qualify as “adverse actions.” Examples:

● filing or threatening litigation alleging nothing more than that a claimant lacks merit in claiming a right

or a violation, or other frivolous litigation; or

● filing or threatening reports to law enforcement to have a claimant arrested or deported.

For More Information: Visit the Division website, call 303-318-8441, or email cdle_labor_standards@state.co.us.

E.g., Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (“the filing of [criminal] charges against a former

employee may constitute adverse action”); Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987)

(having a former employee arrested for trespass for returning to the premises after her termination); Wage Protection Rule

7 CCR 1103-7, Rule 4.8 2 (“Any effort to use a person’s immigration status to negatively impact” labor rights or proceedings

is an unlawful act of obstruction [and] retaliation,” including “to ‘threaten[] to report to law enforcement officials the

immigration status of the threatened person or another person’” to induce a person to give up a labor right ot claim).

E.g., Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) (employer committed “adverse action” by, in

response to employee protected activity, threatening “to address your behavior through legal channels,” on the premise

that her disability accommodation claim was “weak at best” and her discrimination allegations were “slanderous” —

because the lawsuit threat “served to ‘intimidate’ or ‘threaten’ her in the assertion of her right to make complaints or file

charges”); EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 778 (W.D. Va. 1980) (employer committed “adverse

action” by filing a defamation lawsuit in response to a former employee’s administrative charge of discrimination).

Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 63 (2006) (“An employer can effectively retaliate against

an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”).

E.g., Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022) (en banc) (denial of lateral transfer can qualify as

actionable “adverse action”); Patrolmen’s Benevolent Ass’n v. City of New York, 310 F.3d 43 (2d Cir. 2002) (reassignment

of officer to different duties, outside the area in which he had been working and preferred to continue to work (domestic

violence cases) and with worse community relations, qualified as “adverse action”).

Martin v Canon Business Solutions, Inc., No. 11-CV-02565-WJM-KMT, 2013 WL 4838913 (D. Colo. Sep. 9, 2013) (allowing

claim that plaintiff’s “hostile work environment, and her constructive discharge were retaliation for taking FMLA leave”).

Connelly v. County of Rockland, 61 F.4th 322, 326 (2d Cir. 2023) (“cases have often mentioned ‘reprimands’ when listing

examples of adverse employment actions,” but not if a reprimand is more like mere “criticism” than an action meaningfully

adverse enough to deter protected activity); Flanigan v Anglogold Ashanti N. Am., No. 1:22-CV-00646-RM-STV, 2022 WL

18109247 (D. Colo. Dec. 16. 2022) (aggressive warning that employee would be “further disciplined” if they complained of

discrimination again qualified as adverse action because it was “intended to dissuade” from pursuing a complaint).

E.g., Kids Corner, DLSS Claim #3785-22 (Citation Dec. 29, 2023) (ceasing the assigning of any work to an employee

qualifies as a termination, regardless of whether the employer expressly stated that the employee was terminated); Martin

v Canon Business Solutions, Inc., No. 11-CV-02565-WJM-KMT, 2013 WL 4838913 (D. Colo. Sep. 9, 2013) (recognizing

claim that plaintiff’s “hostile work environment, and her constructive discharge were retaliation for taking FMLA leave”).

Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 68 (2006) (defining retaliatory “adverse action” as action

that “well might have dissuaded a reasonable worker from” protected activity).

Last updated Feb. 15, 2024