Colorado’s second-highest court last month reinstated a company’s appeal in a wage violation case, finding the state’s labor department neglected to indicate when it mailed its original decision and further misrepresented the deadline to appeal.

A three-judge panel for the Court of Appeals considered the narrow, but novel, issue of what happens when a party seeks judicial review of an agency decision pursuant to the 35-day deadline in state law but it is unclear when the agency actually placed its decision in the mail.

The Division of Labor Standards and Statistics, which falls under the state’s labor department, insisted that it provided Bartenders and More an emailed version of its decision on April 12, 2022, finding the company owed nearly $10,000 in fines. The decision was also dated April 12 and indicated Bartenders and More had 35 days from the decision date to begin an appeal.

Bartenders and More filed for judicial review 14 minutes after midnight on May 18, 2022 – 36 days after the decision. Consequently, a trial judge dismissed the appeal as late.

However, the Court of Appeals concluded Colorado law was explicit: parties have 35 days to seek judicial review “after the date of mailing of the decision.” Problematically for the government, the April 12 decision made no mention of when the agency put it in the mail, and the panel was not willing to excuse the oversight.

“There is a material distinction between issuing an administrative decision and mailing it,” wrote Judge Lino S. Lipinsky de Orlov in the Dec. 21 opinion. “The mere inclusion in the Decision of the date on which the hearings officer issued it did not communicate when the Division mailed the Decision.”

Case: Bartenders and More v. Colorado Department of Labor and Environment

Decided: December 21, 2023

Jurisdiction: Denver

Ruling: 3-0

Judges: Lino S. Lipinsky de Orlov (author)

Craig R. Welling

Christina F. Gomez

Bartenders and More, an Aurora-based event staffing company, received a citation for $10,900 after the labor standards division concluded owner Kristina Eccles violated the law in an attempt to pressure workers to give their owed wages back to her company. A hearing officer largely upheld that determination, but reduced the fine by $1,000.

The decision was dated April 12 and emailed to Bartenders and More the same day. Also on April 12, the hearing officer attested to giving the decision to a third party for mailing. Bartenders and More received the document on April 15.

In October 2022, after Bartenders and More sought judicial review of its fine, Denver District Court Judge Karen L. Brody concluded she could not hear the appeal because the court filing happened 36 days beyond April 12. Brody believed the evidence “unequivocally establishes” the agency mailed its decision on April 12. Moreover, the agency’s regulations gave it the authority to disseminate decisions electronically, meaning the April 12 email put Bartenders and More on notice it had 35 days to act.

“It is difficult for the Court to conceive of more clear proof of mailing,” she wrote.

Turning to the Court of Appeals, Bartenders and More argued that if the company was expected to strictly comply with the 35-day deadline, the government should strictly comply with its own obligation to start the clock at the time it mails the decision.

Assistant Attorney General Evan Brennan maintained it “is clear” from the April 12 email that Bartenders and More had 35 days from the decision date to appeal.

“That actually is a false statement, isn’t it? That’s not what the statute provides,” Lipinsky responded at oral arguments.

The panel sided against the government. The labor standards division could not sidestep Colorado law by pointing to its email or the date on the decision itself as the beginning of the 35-day appeal window, wrote Lipinsky. Although the division may have, in fact, mailed its decision on April 12, it was also plausible the decision was not mailed until the next day or the day after that.

“Under the Division’s reasoning, an administrative agency could force an aggrieved party to guess the deadline for the party’s appeal,” he explained. “But as a matter of fundamental fairness, a party aggrieved by the decision of an administrative agency must be provided with notice of the deadline.”

The case is Bartenders and More et al. v. Colorado Department of Labor and Environment.