dissenting:
I do not view the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201-219 (1994), as preempting the notice-of-claim provisions in the Colorado Governmental Immunity Act (CGIA), § 24-10-109, 7 CRS. (2001). Therefore, I would hold that a plaintiff must comply with such notice-of-claim provisions in a claim against state employees 1 for retaliation under the FLSA, and accordingly dissent from the majority opinion.
L.
The United States Supreme Court has now restated with undeniable clarity that a state enjoys sovereign immunity from suit in a state or federal court that can only be waived by its own choice, or abrogated by the enforcement power or other appropriate exercise of congressional power. Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Hartman does not suggest that Congress abrogated the states' immunity *735with the passage of the FLSA, nor would such argument have merit. See Alden, 527 U.S. at 712, 730-32, 119 S.Ct. 2240. Therefore, the State of Colorado is immune from suit brought under the FLSA except to the extent it has waived its immunity. The CGIA is that waiver; it represents Colorado's definition of the parameters of liability that it has agreed to accept for itself, its subdivisions, and its employees.
When it promulgated the CGIA, the General Assembly set forth conditions that must be met in order to take advantage of the waiver; the notice-of-claim statute was one such condition. § 24-10-109. Therefore, a plaintiff cannot bring claims against the state or one of its employees unless he or she first files notice within 180 days of the event giving rise to the claim. Id. The notice is a condition precedent to the ability to sue a state employee.
Significantly, although Hartman sues the defendants in their individual capacities, she complains of conduct that occurred in the context of their employment. The structure of the statute is such that it acknowledges the broad immunity of the state, its entities, and its employees, but then limits that immunity by setting forth specific exceptions. §§ 24-10-106, -110. Tortious conduct done "willfully and wantonly" by a state employee is one of those exceptions. Id. Hence, fundamentally, Hartman is proceeding by permission of the CGIA. I cannot support a holding that ignores the strictures of the very statute that permits plaintiff's suit in the first place.
Buch contradiction notwithstanding, I agree with the majority that if the notice-of-claim provision stands "as an obstacle to the accomplishment and execution of the full objectives of Congress," then the FLSA may preempt it. Dep't of Health v. The Mill, 887 P.2d 993, 1004 (Colo.1994). I further note, however, that the "exercise of federal supremacy is not to be presumed lightly." Id. And, "We must begin by assuming that the historic police powers of the state are not to be superseded by any federal laws or regulations unless that congressional purpose is clearly shown." Id. When weighed in light of these presumptions, I disagree with the conclusion that the notice-of-claim statute "stands as an obstacle" to the goals of the FLSA, warranting the statute's preemption.
Preliminarily, I look to congressional intent in enacting the FLSA in order to determine whether such intent inferentially preempts operation of CGIA provisions. "The principal congressional purpose in enacting the [FLSA] of 1988 was to protect all covered workers from substandard wages and oppressive working hours, 'labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers' " Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (quoting 29 U.S.C. $ 202(a)). The FLSA provides that covered employees may not be required to work more than forty hours per seven-day week without overtime compensation at a rate not less than one and one-half times their regular pay. 29 U.S.C. § 207(a)(1). The FLSA also contains an "anti-retaliation provision" that prohibits employers from retaliating against covered employees for filing complaints about violations of the Act. 29 U.S.C. § 215(a)(8). The purposes of the anti-retaliation provision are: (1) "to provide an incentive for employees to report wage and hour violations by their employers"; (2) " 'to prevent fear of economic retaliation by an employer against an employee who chose to voice such a grievance' "; and (8) "to ensure that employees are not compelled to risk their jobs in order to assert their wage and hour rights under the Act." Lambert v. Ackerley, 180 F.3d 997, 1003-04 (9th Cir.1999) (quoting EEOC v. White Son Enterps., 881 F.2d 1006, 1011 (11th Cir.1989)).
I do not believe the CGIA's notice requirement thwarts in any way the general purpose of the FLSA or the specific purposes behind the anti-retaliation provision. Instead, the CGIA's notice-of-claim provisions allow a public entity to investigate and remedy dangerous conditions, see Jefferson County Health Servs. Ass'n v. Feeney, 974 P.2d 1001, 1003 (Colo.1998), which is fully consistent with the FLSA's purpose of safeguarding the working conditions of employees. Without the notice-of-claim provision, a state institu*736tion may not learn of the willful and wanton conduct of an employee until a full three years later. See 29 U.S.C. § 255(a) (1994) (setting the statute of limitations for a cause of action arising out of a willfal violation of FLSA at three years). Moreover, the notice-of-claim provisions "simply address[ ] a concern that the [federal law] does not, namely the historical concern of governmental bodies that they be given reasonably prompt notice of tort claims against them." Draper v. Chiapuzio, 9 F.3d 1391, 1393 (9th Cir.1993). Notice affords states the opportunity to investigate the claim, and perhaps even settle, without being forced immediately into the adversarial setting of the courtroom.
The Supreme Court's holding that state notice-of-claim requirements are inconsistent with Congress's purpose in enacting 42 U.S.C. § 1983 (1994), see Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), does not persuade me that the CGIA requirements are also inconsistent with the FLSA. In Felder, the Supreme Court stated that the core purpose of § 1983 is "to provide compensatory relief for those deprived of their federal rights by state actors." Id. "Section 1983 accomplishes this goal by creating a form of liability that, by its very nature, runs only against a specific class of defendants; government bodies and their officials." Id. "Thus, § 1983 provides 'a uniquely federal remedy against incursions ... upon rights secured by the Constitution and the laws of the Nation....' " Id. at 139, 108 S.Ct. 2302 (quoting Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)).
The FLSA imposes liability on "employers," both public and private. Thus, whereas § 1983 is directed solely at remedying governmental conduct, the FLSA is a statute of general application and does not apply only to "governmental bodies and its officials." Id. at 141, 108 S.Ct. 2302. In fact, it was not until 1966, twenty-eight years after the FLSA was enacted, that the statute was amended to include states and other public entities within the definition of FLSA employers. See Fair Labor Standards Amendments of 1966, Pub.L. No. 89-601, § 102(b), 80 Stat. 881 (extending the FLSA to certain categories of state and local employees). As the Court in Felder noted, § 1983 litigation targets precisely those actors that Wisconsin's notice-of-claim statute protects. Felder, 487 U.S. at 144-46, 108 S.Ct. 2302. In contrast, the FLSA sweeps well beyond any specific foeus on governmental employers and belies any intent to preempt the field.
Hartman further argues that the notice-of-claim provisions of the CGIA shorten the statute of limitations applicable to her FLSA retaliation claim and are thereby inconsistent with the purposes of the FLSA. To the contrary, the notice-of-claim provisions set forth in sections 24-10-109, -118(1)(a), 7 CRS. (2001), are not limitations on actions, but conditions precedent to the assertion of a claim against a public entity or public employee. Felder, 487 U.S. at 144, 108 S.Ct. 2302; King v. United States, 53 F.Supp.2d 1056, 1081 (D.Colo.1999) (citing City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 768 (Colo.1992)). Thus, once notice is filed, the plaintiff retains the full benefit of the applicable limitations period. Furthermore, the CGIA recognizes that notice and statute of limitations are two distinct issues and, in fact, section 24-10-109(5) sets forth the explicit requirement that claimants against public entities and public employees must also comply with the applicable statute of limitations.
I recognize the possibility that federal courts may reach a different result on this issue and also recognize that there are cases supporting preemption, see, e.g., Heder v. City of Two Rivers 149 F.Supp.2d 677 (E.D.Wis.2001); Kilvitis v. County of Luzerne, 52 F.Supp.2d 403 (M.D.Penn.1999). I would nonetheless conclude as a state court, absent a clear conflict between the CGIA and the FLSA or preemptive direction from Congress, we must give full effect to the CGIA.
Moreover, it merits noting that it was Hartman who sought the State of Colorado's courts as the forum in which to bring this suit. -It seems incongruous that having once chosen the forum, plaintiff now asserts that the rules of that forum operate to her disadvantage.
Accordingly, in my view, the considerations weigh in favor of asserting the law of Colorado against a finding of preemption. I would hold that the CGIA's notice-of-claim provisions govern this proceeding.
*737IL.
Because I would hold that Hartman was required to provide notice of her FLSA retaliation claim, I next address her argument under Alden, that this requirement did not exist at the time she filed her complaint and should not be applied retrospectively to bar her claim. I also believe this argument is without merit.
I rest my conclusion in this case not on Alden, but on substantive preemption analysis, le., the notice-of-claim statute does not thwart the goals of the FLSA. See Felder, 487 U.S. at 139-41, 108 S.Ct. 2302. The fact that the question of whether the FLSA preempts the CGIA's notice-of-claim provisions is one of first impression in Colorado, in no way leads to the conclusion that any holding should not be applied in this case.
Hence, I would hold that a plaintiff filing a FLSA retaliation claim against a state employee in his individual capacity must comply with the CGIA's notice-of-claim provisions, and therefore respectfully dissent from the majority opinion.
I am authorized to state that Justice COATS joins in this dissent.
. The question of whether individual defendants such as Charles Middleton and Leon Travis are "employers" for purposes of the FLSA is one which the court of appeals resolved in the affirmative. The parties did not seek certiorari on that issue. Rather, we took certiorari on the narrower question of whether a plaintiff suing a defendant in his individual capacity under the FLSA would be required to comply with the CGIA notice requirement.