Certified or Non-Certified Employees Most positions with the state are identified as state classified positions. After an employee in a classified position passes the requisite probationary period, he or she becomes a certified employee. As discussed below, certified employees have the right to appeal certain employment actions with the State Personnel Board. Other positions, including Administrative Professionals, Faculty and Graduate Assistants, Non-Student hourly employees, and certain fellows, interns, and trainees, hold non-classified positions. Employees in these positions do not have rights before the State Personnel Board, but have other rights as specifically provided to them by their employer. Employees in both classified and non-classified positions also have the right to bring claims of discrimination against the State, as discussed below. Colorado State Personnel Board Certified employees have the right to challenge certain personnel actions by filing an appeal with the State Personnel Board. An action generally is appealable if it *adversely impacts [an employee*s] pay, status, tenure, or a performance rating and award.* State Personnel Board Rule 8-4. Other actions generally are appealable to the Board after an employee exhausts an internal grievance process. State Personnel Board Rule 8-8. Regardless of whether an action is directly appealable to the Board or must be brought first through the grievance process, an employee must file the Board appeal or grievance within 10 days of the action at issue. State Personnel Board Rules 8-36, 8-8(B). After an appeal is filed, an administrative law judge (ALJ) will be assigned to adjudicate appeal.
The State Personnel Board also has jurisdiction over claims of discrimination brought by certified employees. State Personnel Board Rule 8-25. Like other appeals, to be timely filed, an employee must file the appeal with the Board within 10 days of the action at issue. State Personnel Board Rule 8-25. If an employee files an appeal alleging discrimination, the Board will refer the matter to the Colorado Civil Rights Division (CCRD) for investigation. As discussed in detail below, an employee alleging discrimination also can file directly with the CCRD or the Equal Employment Opportunity Commission (EEOC). Claims of Discrimination Both classified and non-classified employees have the right to file a charge of discrimination with the CCRD or EEOC. A charge of discrimination must be filed with the CCRD within six months of the action at issue. If the employee files a charge of discrimination with the EEOC, he or she must do so within 300 days of the discriminatory action. After the charge is filed, the CCRD or EEOC will contact the employer to obtain its response to the employee*s charge of discrimination. After receiving the employer*s response, the CCRD or EEOC will then provide it to the employee. At that time, the employee has the opportunity to file a rebuttal statement, and any supporting evidence, with the CCRD or EEOC. The CCRD or EEOC then will issue a determination as to whether probable cause exists that discrimination occurred as alleged. If probable cause is found, the CCRD or EEOC will request that the parties engage in facilitated settlement discussions in effort to resolve the complaint. If probable cause is not found, or if after finding probable cause settlement discussions are not successful, the CCRD or EEOC generally will then issue a notice of right to sue, which allows the employee to proceed to litigating his or her claims in court. Colorado Governmental Immunity Act The Colorado Governmental Immunity Act (CGIA) requires that any individual bringing a claim in tort against the State of Colorado or its entities provide notice to the State within 162 days from the date of injury. If notice if required and not provided within the required time period, then the claim is barred. It is debatable whether such notice is required related to all employment claims against the State of Colorado. However, to ensure the claim is not barred because of lack of notice, we recommend that employees file the required CGIA notice within the requisite time period. Conclusion As with all areas of the law, employment claims brought by state employees are fact specific and can be complex. As such, each situation is different and must be evaluated on an individual basis. Employment attorneys experienced in representing state employees, such as those as The Wick Law Office, can provide advice to assist you with this determination.