Payback Is an Employment Right in Colorado

While the laws covering employee wages may seem fairly straightforward, certain situations can complicate things:

• What happens when federal, state, or local laws don’t agree—which takes precedence?
• What happens beyond 40 hours a week—doesn’t that call for overtime pay?
• What about sick time, vacation days, and retirement plans after leaving a job?

Luckily, employment attorneys with experience in wage-and-hour law are here to break it all down.

Federal vs. State Minimum Wage Laws

Wage-related matters are primarily governed by one federal law, the Fair Labor Standards Act (FLSA), and two state laws:

• The Colorado Wage Act; and
• The Colorado Overtime and Minimum Pay Standards Order (COMPS Order).

“The Colorado Wage Act addresses issues concerning any wages that are owed to an employee, whether it be straight time, salary, or overtime,” says Cynthia Wellbrock, an employment law attorney at the Law Office of Cynthia E. Wellbrock and The Respectful Workplace. “The COMPS Order addresses issues of minimum wage in Colorado, overtime, rest breaks, meal breaks, and record keeping.”

When looking for a job, the first question most of us ask is, “What does it pay?” While the federal minimum wage is $7.25 per hour, the COMPS Order sets the Colorado minimum wage at $13.65.

“Only Denver has a higher minimum wage than the Colorado state minimum wage,” says Rachel E. Ellis, an employment lawyer at Livelihood Law. The current Denver city and county minimum wage is $17.29 per hour.

Overtime, Breaks, and Meal Periods

After finding out what the job pays, you’ll want to know about the working conditions and perks. “Nearly all employees are entitled to meal/rest breaks,” Ellis says. “Some highly compensated employees in professional, administrative, and executive positions are not entitled to overtime pay.”

In terms of overtime, the COMPS Order is more protective than federal law. Under Colorado law, “Employers must pay employees time-and-a-half of an employee’s regular rate of pay after more than 40 hours in a workweek, 12 hours per workday, or 12 consecutive hours, without regard to the starting and ending time of the workday,” adds Ellis.

Two threshold questions must be addressed before overtime exemptions are triggered, Wellbrock says:

1. Is the employee paid on a salaried basis?
2. Do they earn at least $50,000 per year? (“The salaried amount requirement changes each year,” she adds.)

If both threshold questions are met, executive, administrative, professional, outside salespersons, and computer employees do not qualify for overtime pay.

Withholding Wages To Pay Back a Debt

In Colorado, wages can be garnished by court order on behalf of a creditor. In other words, a Colorado employee’s unpaid debt—child support, for example—can be paid back via some of their earned wages, which a court can order their employer to withhold.

Employers have no discretion in these matters, and a creditor can garnish 20 percent of an employee’s disposable earnings—“defined as whatever is left of their paycheck after taxes and health insurance costs are withheld,” Ellis says.

Non-Payment of Wages and the Final Check

Payment-related matters can get messy after someone quits or is terminated. “An employer must compensate an employee for all work performed,” Ellis says. “No matter the reason for the termination, the employer should prepare the employee’s wages for payment immediately upon termination.”

Even if you quit, you are still entitled to earned bonuses and incentives. “A bonus that is earned, vested, and determinable must be paid,” says Wellbrock.

Some “perks” simply aren’t mandated in Colorado. These include paid sick leave, severance plans or retirement plans. Other rules, at times, fill those gaps. Colorado’s Healthy Families and Workplaces Act (HFWA) entitles employees to “48 hours of paid time off for their physical or mental health needs, or the physical or mental health needs of an immediate family member,” says Wellbrock.

Unlike when an employee is terminated, when someone quits, the paycheck is due on the next regular pay date. “If the employee does not receive payment, they may make a demand for their unpaid wages and begin the wage theft process,” Ellis says.

Filing a Complaint with the Colorado Department of Labor and Employment

When workers don’t receive the pay they are due, a formal complaint can be filed with the Colorado Department of Labor and Employment (CDLE). If it determines wages are owed, it issues a determination as to the amount of wages and penalties owed. A worker can then file that as a judgment against the employer.

“If you have a claim that is more than $15,000, you should contact an attorney because the CDLE can only seek repayment up to that amount,” Ellis says.

Wellbrook notes the department does not enforce these orders, so if it determines an employee is owed unpaid wages and the employer does not comply, the employee must pursue a court order. Employers are subject to penalties for nonpayment of valid wage requests. If owed compensation is not paid, employees can contact the Colorado Plaintiff Employment Lawyer Association.

When To Hire an Employment Law Attorney

“Employees don’t always need to hire an attorney,” Wellbrock says. “Sometimes, a little direction is all they need.”

If you would like some direction or legal advice about your specific wage claim, use the Super Lawyers directory to find a local attorney with experience in wage and hour laws.