Employee Benefits – Denver Employment Lawyer

Denver public school teachers on the verge of strike

by Denver Employment Lawyer14 Jan 20191 May 20241 Comment

For the past year, teachers in the Denver public school system have negotiated with administrators over a new bargained agreement covering their employment with little success. As the current CBA reaches expiration on January 18, employees face a strike vote on the following day.

If Denver teachers vote to strike it may leave Denver public schools with the choice to close schools temporarily, replace teachers with short term replacements or bargain to give its teachers appropriate compensation.

The final negotiation sessions before the strike take place this week ahead of the expiration of the current CBA. The teachers’ union has already informed the Colorado Department of Labor and Employment of its intent to strike, as required by the Colorado Peace Act.

Denver teachers currently receive compensation through a complicated formula of base salary and bonuses. The existing collective bargaining agreement, like many educational CBAs, includes lanes for salary compensation that reward teachers for continued education and tenure in addition to cost of living adjustments.

Additionally, Denver teachers receive bonuses based upon several additional factors, such as teaching in underserved areas and school performance. The bonuses are funded from a local tax initiative for this purpose. Any bargained agreement lacking these bonuses will result in losing access to that revenue for teacher compensation. This compensation program is known as ProComp.

The divide between the Denver teachers’ union and Denver Public Schools

The Denver Public School system and the Denver teachers’ union (Denver Classroom Teachers Association) remain at odds over several basic issues. The Denver teachers’ union wants to increase funding for compensation, simply the compensation structure, move more funding into base pay rather than bonuses and create salary lanes making it possible for ambitious teachers to earn $100,000 in compensation. The Denver Public School system, like any employer, wants to add far less to teacher pay and maintain the bonus structure. This represents an extremely common divide in labor law negotiations.

The Denver teachers’ union is not fighting for more pay for the sake of simply increasing member compensation. Denver teachers are underpaid compared to surrounding districts and face higher costs of living to live in the same district where they teach–even with regular cost of living pay adjustments.

This has the result of driving successful teachers out of Denver schools and into other surrounding Colorado districts. It also causes many teachers to have to live outside of Denver, increasing their commute and diminishing their ownership of the success of their schools. The lack of financial predictability in pay also makes it harder for teachers to plan appropriately for their financial future.

Denver school administrators talk a good game about wanting to improve these problems but so far fail to put enough of the district’s $1 billion budget towards one of its most important assets. Predictably school officials want to maintain a complex formula based on bonuses because it forces teachers to absorb the consequences of administrative failings by tying their compensation to school success. It also has the effect of reducing overall compensation by preventing teachers from accumulating an increasingly higher salary over time.

These are not hypothetical problems justifying improving Denver teacher pay. Comparisons of compensation structures between Denver and other school districts reflects underpaid Denver teachers. The high turnover of teachers as they flee Denver for more pay is not hypothetical. It is a real and statistically proven problem. High turnover creates several problems for the Denver school district:

Schools lose institutional knowledge of the students at the school and loses long term bonds with the local community;
Teachers with the best qualifications are able to find better paying jobs elsewhere, lowering the quality of teachers remaining in the schools;
Tenure of teachers at Denver schools declines which reduces the level of experience from which younger teachers can learn;
The Denver district spends more resources recruiting and training teachers which are lost as teachers leave for other districts, making each teacher more expensive despite not increasing compensation; and
Teachers have less incentive to invest personally in the performance of the school when they expect to leave in a few years for another district.

Why Denver teachers should strike if Denver Public Schools cannot agree to a fair negotiation package

Denver teachers deserve a fair compensation structure for their work that reflects their value to the community. If teachers are expected to be professionals working in a major city then they should be appropriately compensated as such. Denver school administrators should treat the investment of public resources into recruiting and training teachers as an important investment in the city. A compensation structure that treats teachers as fungible and a burden to the city does not improve Denver schools.

Teachers in Denver should strike if a fair agreement cannot be reached. Denver school officials will feel no pressure to move the terms of their proposal as long as they feel teachers will eventually cave. A labor strike will put school officials on a clock to figure out how to deal with the problem or face a school district without teachers. It will also add publicity to the dispute and motivate parents to push the district towards finding a solution. Teachers around the country face similar problems (including the extremely similar situation currently in Los Angeles). Each union that strikes over unfair compensation will put the next district on notice that it needs to deal fairly with the union or face similar consequences.

Are paid 15 minute breaks required by law under Colorado labor law?

by Denver Employment Lawyer25 Jun 20188 Apr 20243 Comments

Colorado employees seek out the answer to this question with high frequency for good reason. Colorado is one of the states that has a labor and employment law that requires many employees to receive a paid break at work and gives employees legal remedies when employers refuse to provide legally required paid breaks.

In this post we will discuss some of the legal issues around Colorado’s paid break law and when you might need to talk to an employment lawyer in Colorado if you do not receive paid breaks required by law. Before getting into those details, let’s get to a brief answer under Colorado law about paid 15 minute breaks.

Under Colorado law, nonexempt employees are entitled to paid 10 minute breaks every four hours of work but not entitled to 15 minute paid breaks. Employee break laws involve both federal and state law so let’s take a look at how each affects employee rights to unpaid and paid breaks.

Federal law on paid breaks for employees

Federal law does not require paid breaks for employees but establishes minimum standards for whether breaks are paid or unpaid when they occur. The federal employment law that applies to most employees on the subject of breaks is the Fair Labor Standards Act. FLSA sets minimum wage conditions for covered, nonexempt employees in all states.

Under the Fair Labor Standards Act, employees are not generally entitled to break periods at all. If, however, an employee receives a break period of less than twenty minutes then the employee must be paid for that break time.

An important caveat under the FLSA applies to mothers who need break time to express milk. The PPACA created a specific break rule in this situation. The PPACA amended the FLSA under 29 U.S.C. section 207(r)(1) to require reasonable break time for mothers to express milk. This rule applies if:

The mother gave birth within the past year;
Is covered by the overtime protections of the FLSA;
The employer employees 50 or more employees; and
The employer cannot claim undue hardship to provide the required break time.

Under the FLSA amendment the break period for expressing milk does not have to be paid; however, if the employer provides breaks under twenty minutes and that break time is used for expressing milk then it must be paid like any other paid break under FLSA.

Federal law provides for a wide range of unpaid break or rest periods to employees under different circumstances. These include:

Family and Medical Leave Act (FMLA) covered leave;
Leave as an accommodation for a disability;
Required rest for transportation workers; and
Pregnancy leave under the Pregnancy Discrimination Act.

The FLSA does not require employers to provide unpaid rest periods for lunches but if an employer provides a rest period greater than twenty minutes then it is not required to pay for that time so long as the employee is truly relieved of all work on behalf of the employer.

Colorado labor and employment laws on paid breaks

Colorado law specifically requires paid and unpaid break periods for employees covered by the state wage law. Colorado has other state laws that require unpaid break periods for particular purposes like family leave or as an accommodation for a disability; but let’s focus on how Colorado law expands on the FLSA for both paid and unpaid break periods under the normal work day.

Like federal law, Colorado labor laws protect break periods for employees covered by the state wage law. If you are exempt from this law then state law does not require employers to provide typical break or lunch periods. Most employees are covered by Colorado wage law under the Colorado Wage Act, found in Title 8 of the Colorado Revised Statutes.

The rules for typical breaks under Colorado law arise under Colorado Minimum Wage Order 34 and require:

A paid 10 minute break in the middle of each four hour work period as practical as possible to place the break in the middle of the four hour work period;
An unpaid 30 minute break or lunch when the work schedule exceeds five consecutive hours, if practical;
- If not practical then the employer must allow the employee an opportunity to each a meal of choice on the clock whether provided by the employer or employee.

An employer can require the employee to stay on work premises during the paid ten minute break but not during the longer unpaid lunch period.

Putting federal and Colorado paid break laws together

Note that the Colorado Wage Act and the current Minimum Wage Order do not require paid 15 minute break periods although fifteen minutes is the standard break period for many employers. If an employer provides a fifteen minute break period then it must be paid for covered employees under the FLSA; but the employer only has to provide a ten minute period for covered employees under the Colorado Wage Act.

Putting the two together for an employee covered by both federal and state minimum wage laws:

The employer must provide a paid 10 minute break every four hours;
The employer may extend the break period to 15 minutes;
If the employer extends the break period to 15 minutes then it must be a paid 15 minute break.

If you work under an individual employment contract or a collective bargaining agreement, the contract or agreement may provide additional requirements for rest periods.

Remedies against a Colorado employer for violating paid break requirements

Although federal and Colorado wage laws overlap and work together to establish minimum paid break rules, the remedies under each law are unique to the requirements of the respective law.

Federal law

Federal law only requires employers to pay for breaks of twenty minutes or less so when employees take these breaks they must count as compensable time in the day worked. The employee’s break time must count within the work hours and receive minimum wage and overtime pay for all compensable work time within the work week.

An employer who fails to count compensable breaks within the workweek is liable for unpaid minimum wage and overtime pay (as appropriate).

Colorado law

Colorado law is more expansive in its protections because breaks are required for nonexempt employees. If the employee receives the required ten minute breaks but the employer does not include the breaks within compensable time then the employer is liable to the employee for unpaid wages and overtime pay (as appropriate) for the ten minute breaks. Here, federal and Colorado law is similar.

However, if the employee does not receive the breaks then the employee can pursue the employer for claims related to this violation of the Minimum Wage Order. Employees may not have tremendous claims if the employer only does not provide the required paid ten minute breaks but an employee could nevertheless pursue a claim for the violation.

If the employer takes disciplinary action against an employee who demands due paid breaks then the employee may have a stronger claim against the employer for the effects of the disciplinary action. Employees have successfully sued for wrongful discharge in violation of public policy when employers terminate employees in retaliation for demanding the legally required break periods.

Talk to an employment lawyer in Colorado about your employee break rights

If you believe you are not receiving required break periods or not being properly paid for your breaks then you should talk to a Denver employment lawyer right away. Wage-based claims carry a statute of limitations period that applies to each pay period so delay working on your potential claims may limit your right to recover due wages.

An employment lawyer can help assess your situation and whether you have claims to pursue against your employer. Recall that some employees are exempt from the break rules under federal and Colorado law. Demanding breaks not required by law or by an employment contract could result in losing your job with recourse. An employment lawyer can help assess whether you are entitled to breaks and what next steps may be available to you.

Protected leave does not automatically prevent termination from your job

by Denver Employment Lawyer4 May 20188 Apr 2024Leave a comment

Employees around the country often misunderstand that protected leave from a job is not an automatic bar from an employer terminating the employee for other reasons. The role of protected leave for a family or medical reason is to protect an employee from termination due to the leave.

Generally, employers can terminate, demote, promote, transfer, or otherwise change an employee’s job during or after a protected period of leave under federal or Colorado employment law so long as the motivation for the change is not the employee’s protected leave or the reason for the protected leave. (Assuming no other unlawful motivation exists.)

Employees facing termination or demotion while on a protected leave or immediately following a protection period of leave have good reason to be concerned that the employer’s motives are not pure. Often employers have unlawful motivations that create claims under federal or Colorado employment law for wrongful termination.

It usually is not obvious whether the employer’s action is lawful. For this reason, if you are fired during or after a period of leave from your job then you should contact employment lawyers in Denver about potential claims.

Protected leave from your job in Colorado

Colorado employees may enjoy protected family or medical leave for a variety of reasons under state or federal employment law.

These laws protect the right to return to work at the same or similar position after a protected period of leave. However, the right to return to work is not absolute under these laws. They only protect the employee’s right to return to work at the same or similar position as though the employee never took leave at all.

To put it more precisely, these employment laws protect access to limited periods of leave of absence and prohibit employers from discriminating against employees for requesting, taking, or returning from protected leave.

Laws protecting employee right to leave of absence for family and medical issues include:

Family and Medical Leave Act: FMLA protects up to twelve weeks of unpaid leave for care of the employee’s or certain family member’s serious medical condition, pregnancy, childbirth, or bonding with an adopted or foster child;
Colorado Family Care Act: Colorado FCA expands FMLA coverage for a broader range of family members;
Americans with Disabilities Act: Protects certain medical leave periods as a reasonable accommodation to a disability;
Pregnancy Discrimination Act: PDA is a federal law requiring covered employers to allow pregnancy and childbirth-related leave under the employer’s short term disability leave policy, if it has one; and
Colorado Anti-Discrimination Act: Provides similar protection for a reasonable accommodation to a disability as well as pregnancy and childbirth-related leave under the employer’s short term disability leave policy.

The length of protected leave under these laws can vary considerably and in the case of long term medical conditions there may be concurrent protection under several laws, such as FMLA, ADA and the Colorado ADA. For this reason, if you find yourself dealing with any problems with family and medical leave in Colorado then you should find a local employment lawyer right away to advise you how to deal with these issues.

Why protected leave of absence laws in Colorado do not always protect you from termination

Protected leave employment laws are designed to protect access to leave of absence for medical and family reasons, not to prevent the employer from conducting other employment practices. It is a common myth that protected leave laws absolutely protect an employee from termination during or around the leave of absence.

Employers can discharge or take other adverse employment acts during a protected leave period but risks the employee contacting an employment lawyer and pursing a claim that the employer’s termination or other detrimental act was motivated by the protected leave.

If an employer could never terminate an employee during or immediately after a protected leave period then it would lead to some unusual results:

Employees with legitimate disciplinary or performance issues could find a reason to seek FMLA leave or another protected leave to extend the job and force the employer to choose between firing the employee or enduring an expensive employment lawsuit.
Employers engaging a reduction in force would have to carve out any employees who are on, about to be on, or recently returned from protected leave from the RIF and target other employees who might be more productive or more senior, which could create other legal issues for the employer.
Unscrupulous employees looking for an easy payday could actually perform poorly enough to be on the cusp of a legitimate termination and then abuse protected leave laws to force the employer’s hand to fire them just to pursue a nuisance lawsuit.
A new wave of employment lawsuits would arise establishing rules about how much time must pass between protected leave and an unrelated termination which will make protected leave laws less specific and cost a significant figure for both employers and employees in litigation expenses.
Good employees who deserve to advance may be held back because the employer’s cost-benefit analysis favors keeping a poor performer with protected leave for fear of a related lawsuit.

This would be a losing proposition for employers and good employees while maybe helping bad employees.

When federal and Colorado protected leave laws prevent your employer from a wrongful termination

An employer generally cannot fire an employee because of the protected leave or protected leave request. That means an employer cannot:

Fire the employee in response to requesting or inquiring about taking leave protected by a federal or Colorado employment law;
Fire the employee for submitting a valid request for protected leave but insisting the leave request was invalid;
Terminate the employee while on protected leave for taking leave;
Discharge the employee while on protected leave for not performing material work during a leave period;
Terminate the employee after returning from protected leave for requesting or taking the leave of absence.

Colorado and federal employment laws generally prohibit employers from terminating an employee for the sole reason of requesting or taking protected leave or in addition to other legitimate reasons.

Sometimes employers have lawful reasons to terminate an employee but are motivated to fire the employee for lawful reasons plus the unlawful reason that the employee requested or took leave protected by law.

This is known as a mixed motive claim. In a mixed motive claim the employee’s ability to recover for damages is often limited if the employee cannot disprove that the alleged lawful reasons actually motivated the employer. However, the employee can generally still recover some damages for the employer’s unlawful motivation.

Knowing whether an employer wrongfully terminated an employee for taking a leave of absence

Wrongful termination claims involving leaves of absence can be difficult to pursue because the employer often will rely upon a defense that the discharge was based on a legitimate, unrelated business decision regardless of the truth to that defense. It may not be obvious whether the employer has a legitimate defense or whether the employee can recover a worthwhile sum based upon the facts. This is a good reason to work with an employment lawyer in Colorado to assess your case and help you pursue it.

An employee included in a layoff during a leave of absence is a common source of wrongful termination claims for FMLA and other protected leaves of absence. Employees on a protected leave generally can be a part of a reduction in force so long as the employee’s inclusion is not related to the protected leave.

Often employers do not explain why employees become part of a RIF and even when they do there is no guarantee the employer’s explanation is true. Planning for RIFs usually begins months beforehand so it may be possible to compare the timeline of the leave request and inclusion on the RIF list.

Employees may be individually fired during a protected leave of absence outside of a RIF. In these cases the employer’s explanation for the termination normally involves a performance or disciplinary issue with the employee. In these cases the employer should have a documented history of progressive discipline unless the reason for termination is particularly egregious.

It may be possible to compare how the employer treated similar employees without a protected leave of absence to see if the employer fired other employees with similar problems.

Hiring employment lawyers for wrongful termination claims in Denver, Colorado

Employment lawyers have experience dealing with these wrongful termination claims and know how to investigate and pursue these claims. In many cases the employment lawyer must assess the potential client’s claims based on access to minimal information and pursue additional documents and information through the discovery phase of litigation.

Lawyers with experience dealing with wrongful termination claims under federal and Colorado employment law are best equipped to be able to assess claims early in the process to determine whether it may be worth pursuing to that point.

If you believe you were wrongfully terminated due to a protected leave request then you should find a local employment lawyer right away to discuss your claim. Some protected leave laws require employees to take certain steps within limited time periods to pursue their claims.

FMLA Turns 25 Today

by Denver Employment Lawyer5 Feb 201821 Mar 20241 Comment

On February 5, 1993 President Clinton signed the Family and Medical Leave Act guaranteeing unpaid medical leave to a large swath of employees. The law expanded and simplified protected leave rights under the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, in addition to making protected unpaid medical leave available to workers for a broad range of medical issues unrelated to pregnancy or disability.

FMLA has received a single amendment in its quarter century life to include protected leave to care for injured and ill servicemembers.

However, greater opportunities exist to make protected family and medical leave available to more employees.

FMLA today

Although FMLA is now old enough to run for the House of Representatives there is still incredible pushback from employers. You don’t have to get far into a conversation with human resources professionals to start hearing about “FMLA abuse” in the same terms as tin foil hat conspiracies.

Employers regularly continue to interfere with employee FMLA rights and retaliate against employees for requesting or taking FMLA leave. We cannot be too surprised. Employers still routinely violate other labor and employment laws, some more than 100 years old.

Room for FMLA to grow

Nevertheless, while FMLA was groundbreaking for its time, opportunities remain to expand the statute to help employees in vulnerable medical and family situations. Employers may not be completely on board with FMLA’s current protections but that is no reason to fail to expand FMLA and other leave protections.

Expanded family care

Employees remain unprotected, at least under federal law, for medical leave to care for family members under the employee’s care but not immediate family as defined by FMLA or to attend school meetings for their children.

FMLA protects leave to care for spouses, children and parents only. Workers often provide care for other family members, such as grandchildren, grandparents, nieces and nephews. Under the current statutory protection, jobs remain vulnerable if an employee takes leave to care for these family members.

Reduce the required number of employees

FMLA also only protects employees of covered employers with fifty or more employees, which leaves a large portion of employees unprotected. Studies estimate around sixty percent of employees work for employers covered by the statute. Employees without FMLA protection must rely on state leave laws, other federal laws, or voluntary leave policies.

Domestic violence leave

The Family and Medical Leave Act does not provide employees protected leave to protect themselves from domestic violence. The statute protects eligible medical leave to receive medical care for domestic violence-related injuries but not to receive legal protection or obtain safety protections (such as changing locks on the home).

Without these protections domestic violence victims may have to choose running away from their home and job to avoid harm.

Expanding FMLA to include leave to protect employees from domestic violence would have the same benefits to employers and employees as other protected leave rights under the statute.

Paid family and medical leave

FMLA only protects unpaid leave–forcing many employees to balance medical needs against financial needs. The Family and Medical Leave Act allows employers to exhaust paid leave banks against FMLA leave periods but once employees exhaust their paid leave the remaining leave goes unpaid. For many workers weeks without pay can put the employee’s family in a financially precarious position.

That leaves workers choosing between caring for their health or their family’s health and the family’s financial health. Often the only choice the employee can afford is the financial.

Colorado protected leave laws

Colorado laws provide expanded rights to employees within the state, although not to the full extent many advocate for FMLA. The Colorado Family Care Act expands FMLA rights to include similar leave protections to care for a wider range of family members.

The Colorado FCA does not reduce the minimum number of employees for a covered employer but it expands the range of protected leave. Colorado law provides three days of protected leave to deal with domestic violence, stalking and sexual assault. (Colo. Rev. Stat. §24-34-402.7)

There is additional room for Colorado law to grow but Colorado employees receive greater protection than many states where state law is silent.

Colorado FMLA lawyers

Under FMLA if an employer interferes with your right to protected leave or retaliates against you for taking FMLA leave then you can sue your employer to recover for damages suffered. Often FMLA lawsuits pursue recover of lost wages but you may recover other out of pocket losses, liquidated damages and attorney’s fees.

If you believe your employer violated your employee rights under the statute then you should contact Colorado FMLA lawyers right away.