Do Colorado employees get paid for snow days?

With winter weather in full swing employees in Denver and other parts of Colorado wake up to a lot of snow and ice days. Employers make decisions to open for limited hours or to close entirely for those days. For some workers that can mean an extra day off; but for other employees that can mean losing work hours and badly needed pay. That can leave many employees wondering if work is closed on a snow day, do I get paid? The answer is sometimes depending upon the worker’s status as an employee or independent contractor and exempt or non-exempt. Let’s explore this answer for Colorado workers.

Exempt employees vs. Nonexempt employees

Rules for payment of wages to employees differ depending upon whether an employee is appropriately classified as an exempt or nonexempt employee under the Fair Labor Standards Act and Colorado employment law. Under federal and Colorado wage law an exempt employee is exempt from overtime pay and minimum wage rules. Exempt employees are generally salaried employees who meet one or more statutory exemptions.

An employee is not exempt merely because he or she receives pay on a salary basis or because the employer says the employee is exempt. Most nonexempt employees receive hourly pay on the basis of hours worked in the workweek; but there are employees properly classified as nonexempt who receive a salary. Many employers misclassify nonexempt employees as exempt employees which often results in unpaid overtime pay and minimum wage violations. If you believe you may be misclassified then you should talk to a Colorado unpaid wages lawyer right away.

Snow day pay for nonexempt employees in Colorado

Nonexempt employees are not entitled to pay for hours the employer closes a work site under federal or Colorado employment law. Nevertheless, you may receive wages for an inclement weather day under an employer’s voluntary policy or under a contracted benefit such as:

  • An employer’s elective policy to pay wages for an inclement weather day;
  • The employer allows employees to elect to receive vacation pay or other PTO instead of taking the snow day unpaid;
  • A collective bargaining agreement between your union and employer includes required paid time for inclement weather days;
  • An individual employment contract includes provisions requiring the employer to pay wages for inclement weather days.

You should review the employer’s handbook or any employment contract for these provisions.

Snow day pay for exempt employees in Colorado

The rules for salaried exempt employees under the Fair Labor Standards Act and Colorado employment law are more complex. Employers must pay salaried exempt employees within specific rules to maintain the exemption from overtime pay and minimum wage. If an employer violates these rules then the exemption is destroyed and the employer must pay the employee at least minimum wage plus overtime pay for applicable hours. One of these rules applies to situations where an employer closes for a partial or full day due to weather.

Under the Fair Labor Standards Act an employer generally must pay a salaried exempt employee for an entire week of pay if the employee worked any part of the workweek. Under this rule the employee must be willing to work but is unable to work due to conditions not caused by the employee. This certainly includes days the employer shuts down work, such as snow days. It also includes days in which weather prevents you from getting to the office but the employer is open. (By contrast, an employer can make deductions for narrow reasons, such as the salaried, exempt employee’s FMLA leave.) Although employers cannot deduct salaried exempt employee’s pay for snow days it may deduct the time the employer closes from the employee’s PTO bank.

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Independent Contractors in Colorado and snow day pay

Independent contractors are not employees and therefore only receive pay under the conditions of their contracts. Often contractors only receive pay for days they work or generally for performing services; therefore, it is not common for contractors to receive pay for snow days. Independent contractors must review the terms of their contracts to determine whether the contract gives them snow day pay.

However, it is common for employers to misclassify employees as independent contractors to avoid employee rights laws and wage requirements. Misclassified employees may have remedies against their employer including overtime pay and FMLA rights. If you believe your employer misclassified you as an independent contractor then you should talk to a Colorado unpaid wages lawyer right away.

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EEOC says #MeToo not causing more sexual harassment claims to agency

This week the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. EEOC Chair Victoria A. Lipnic stated in public comments that the agency has not seen a rise in EEOC complaints or charges of discrimination as a result of the #MeToo movement. This might come as a surprise to many, given the publicity given to sexual harassment claims and lawsuits (such as this one against former Fox News host Bill O’Reilly and complaints against Colorado lawmakers). However, in looking at the bigger picture of sexual harassment complaints in the workplace this is far less surprising.

What the EEOC tells us about the impact of #MeToo on sexual harassment complaints

The EEOC Chair disclosed that there has not been a recent increase in complaints of sexual harassment to the agency; however, there has been an increase in website traffic to EEOC resources on sexual harassment. This suggests there is a greater awareness of sexual harassment issues in the workplace but those issues are not funneling up to the anti-discrimination agency. Chairwoman Lipnic also points out that in her conversations with HR professionals and employment lawyers, there is an uptick in sexual harassment complaints to employers. Those complaints find internal resolution from the employer so pursuing external complaints to the EEOC is less often necessary.

The BLR HR blog sought out comments from employer-side employment lawyers on these comments. The lawyers acknowledged there has been more activity but employers are taking steps to improve training and procedures to deal internally with complaints of sexual harassment. They claim employers are motivated by the publicity of the #MeToo movement so there is at least some positive impact across employers even if it is less visible.

Why internal complaints of sexual harassment prevent employees going to the EEOC

There are three main reasons why effective internal procedures for reporting sexual harassment within employers reduces the likelihood that the employees will seek an employment lawyer or file an EEOC charge of discrimination.

1. A change in the corporate culture to take sexual harassment complaints seriously reduces the likelihood that harassment occurs.

A key reason why sexual harassment remains an ongoing problem in the workplace is that the harasser feels he or she can get away with the offensive conduct without consequences. Too often harassers feel empowered to cause harm to other employees because they feel there is a lack of consequences for their actions. If a potential harassers feels employees are more likely to report harassment and the employer may treat the complaints more seriously then the risk to the potential harasser increases substantially.

2. Most harassed employees want the hostile work environment to end, not make waves.

Generally employees who suffer workplace harassment just want the harassment to end and to make sure it does not happen in the future. That is especially true when the harassed employee fears retaliation for reporting harassment. For most people, experiencing sexual harassment at work is an incredibly humiliating situation that they want to end with as little publicity as possible.

Many fear reporting harassment to the EEOC or the Colorado Civil Rights Division will make retaliation more likely but eventually may feel they have no choice when internal reporting procedures fail to cure the harassment. Improving internal procedures to receive and act upon reports of sexual harassment means fewer harassed employees need to take the next step of reporting externally to the EEOC.

3. Employees have to report internally as a first step in most cases.

In the late 1990s, federal courts decided employees should have to report unlawful harassment to the employer and give the employer an opportunity to cure the harassment in most situations. This is known as the Ellerth/Faragher affirmative defense. If employees fail to take advantage of an internal complaint procedure then an employer can raise a defense against the employee in an employment discrimination lawsuit that the employer would have stopped if the harassment if it only knew.

Employees experiencing harassment and seeking out employment lawyers are likely being directed to make internal reports as a first step due to this affirmative defense. As internal procedures improve–or employers at least take them more seriously–these employees are hopefully gaining more satisfaction from these internal procedures than in the past. If the internal procedures effectively end the harassment then the need for an external EEOC complaint decreases.

What should Colorado employees do with a sexual harassment complaint?

The good news is that right now there is a high probability that sexual harassment will be dealt with in a meaningful manner by your employer if you report it internally. Eventually employers will probably slide back towards their prior position of treating complaints less seriously but how long before that happens is unclear. Employees suffering harassment should nevertheless take advantage of their employers’ diligence while it lasts.

If you work in Colorado and suffer sexual harassment or other forms of harassment then you should talk to an employment lawyer near you right away. Your lawyer can advise you about:

  • Whether you need to make an internal complaint;
  • Who to deliver the internal complaint;
  • What to include in the complaint;
  • What your next steps will be in the event the internal complaint does not solve the problem; and
  • What additional steps you should take to document the harassment.