Is Colorado a right to work state under Colorado labor law?

Labor law and employment law suffer a lot of confusion because there are a number of terms and phrases with specific legal meaning but are often misunderstood by employees and employers to have a different meaning. As a result, employees in Colorado and other states often misunderstand their employee rights and employer often misunderstand their duties in the workplace. “Right to work” is one of the least understood terms within labor and employment law. It is commonly confused with “at-will employment” and misunderstood within the proper context. Colorado is not a right to work state under its labor laws but understanding what that term means is as important as knowing the answer to that question. Today’s post will try to clarify what “right to work” means under Colorado labor law.

What does “right to work” mean under labor and employment law?

“Right to work” developed a meaning under labor law to mean those states that prohibit employers and unions representing their employees from requiring employees to join the union as a condition of employment. The term is not a legal term, rather it is a propaganda term adopted by anti-union advocates much in the same way pro-choice/pro-life take up respective positive messaging on their positions on abortion. Nevertheless, right to work is just as cemented in labor law language as having a particular meaning.

Union security agreements generally require that employees within the bargained unit must be union members or must pay a partial dues payment to the union for representation without membership. Proponents of union security agreements understood that requiring union membership would strengthen the financial and human support behind the union. It would also ensure greater labor peace between workers and employers by avoiding fights (sometimes violent) over whether to keep the workplace unionized. Opponents recognized that if unions could not ensure all workers in a bargained unit supported the union financially or personally that the unions would have fewer resources to agitate into other workplaces. It would create a free rider problem and erode voluntary membership. (This issue is discussed further in the recent post discussing the Janus decision by the Supreme Court.)

Brief history of right to work laws

Early labor law in this country left open the opportunity for employers and unions to bargain over these security agreements but anti-union lobbyists in the early twentieth century lobbied for laws to prohibit them. During the New Deal Congress passed the National Labor Relations Act of 1935 (NLRA and also referred to as the Wagner Act) authorized union security agreements. The NLRA authorized employers to enter into four arrangements:

  • Closed shop: Employees must be a member of the union as a condition of employment. If the employee fails to maintain membership (such as not paying dues) then the employer must terminate the employee.
  • Union shop: Like a closed shop but the employer may hire non-union employees but as a consition of employment the non-members must become union members within a set period of time.
  • Agency shop: Employees do not have to be union members but non-members pay agency fees which are partial dues to cover the cost of representing non-members in the bargained unit. The union represents both union member and non-members in the bargained unit for the purpose of the bargained agreement.
  • Open shop: Employees do not have to be union members and the employer cannot fire employees for choosing to join or not join a union.

In 1947 anti-union lobbyists prevailed with the passage of the Labor Management Relations Act over President Truman’s veto which severely limited these arrangements. The LMRA bans closed shops entirely. It amended the NLRA to allow union shops and agency shops subject to state laws which may ban one or both. State laws banning union shops or agency shops are right to work laws. Currently twenty-eight states have right to work laws (but not Colorado).

What is the difference between right to work and at-will employment in Colorado?

Right to work and at-will employment deal with two different issues under labor and employment law. They are commonly confused–partially because they sound similar–but have importantly different meaning.

As we’ve already discussed, right to work laws deal with prohibiting employers and unions from agreeing how to organize their workplace.

At-will employment is an employment condition in which the employment relationship exists as long as both employee and employer want it to continue. Either employer or employee may terminate employment for any reason not prohibited by law (such as unlawful forms of employment discrimination). You can be an at-will employee in a right to work state (such as Texas) or a state that allows union shops or agency shops. In Colorado employees are by default at-will employees unless hired under a collective bargaining agreement or an individual employment contract.

Right to work and at-will employment intersect as issues when an employee works under a collective bargaining agreement. When an employee works under a collective bargaining agreement (CBA) the employment relationship is no longer at-will. It is a contractual relationship governed by the CBA and labor law. The CBA typically includes conditions and procedures for disciplining and terminating an employee. It may also set requirements for employees to give notice or agree not to work for competitors for a period of time.

The standard for termination, at least from the employer, is a just cause standard, rather than at-will. An employer can only fire an employee within the confines of the CBA and must provide the employee an opportunity to be heard and oppose the termination. Often a CBA will establish an arbitration or other hearing procedure for this purpose. An employee cannot be fired for any other reason or without “industrial due process”.

Because Colorado is not a right to work state, an employee may be hired immediately into a collective bargaining agreement and not suffer at-will employment. If the employee is not within a bargained unit then the employee is an at-will employee (or has an individual employment contract) regardless of the state’s union shop laws.

Why should Colorado employees care about right to work or at-will employment?

There are several reasons why Colorado employees might care about the unionization laws in Colorado. An obvious reason is for workers seeking employment in a union shop or workers not in a union shop considering unionization and what requirements they may want the union to impose on employment. Colorado’s state labor law includes unique functions for unionization that must be considered before a unionization campaign begins.

Another important reason relates to when an employee is terminated from employment. Much of the confusion around right to work and at-will employment is why an employer may lawfully fire an employee and when that employee might have a wrongful termination claim. An at-will employee can pursue wrongful termination claims when the employer violates a state or federal employment law prohibiting termination for the employer’s particular motivation. (But unemployment benefits may take a broader approach.) Employees covered under an employment contract or CBA may have contractual remedies for a termination that violates the agreement or because the way the employer terminated the employee violates the procedural requirements of the agreement. If you believe you have a wrongful termination claim then you should contact a Denver employment lawyer right away.

Wrongful termination attorneys in Colorado

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

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.

Colorado employment law

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.

FMLA lawyers in Colorado

Protected leave does not automatically prevent termination from your job

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.

Another appellate court holds Title VII bars LGBT discrimination as a form of sex discrimination

Last week I wrote about the Second Circuit’s opinion earlier this year holding sexual orientation discrimination as a form of sex discrimination prohibited by Title VII. In the title of that post I questioned whether the tide is turning among federal courts to prohibit sexual orientation discrimination under Title VII. It certainly seems that way as the Sixth Circuit dropped its opinion in EEOC v. R.G. &. G.R. Harris Funeral Homes reaching the same conclusion on transgender discrimination. This brings the count to three of the thirteen federal circuits abandoning earlier positions opposing inclusion of LGBT discrimination under Title VII in favor of broader protections against sex discrimination.

Overview of EEOC v. R.G. & G.R. Harris Funeral Homes

In EEOC v. R.G. & G.R. Harris Funeral Homes a transgender employee was fired after disclosing her intent to transition. Aimee Stevens was hired by the funeral home with her male birth name and appearance. After obtaining the job she informed her employer that she intended to transition and would begin working with her female appearance. The funeral director in response fired her. A Michigan federal district court dismissed the EEOC‘s case on the basis that transgender discrimination was not a form of sex discrimination prohibited by Title VII.

Sixth Circuit holds transgender discrimination is sex discrimination

The Sixth Circuit disagreed with the district court holding:

We hold that the EEOC could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity. The EEOC should have had the opportunity, either through a motion for summary judgment or at trial, to establish that the Funeral Home violated Title VII’s prohibition on discrimination on the basis of sex by firing Stephens because she was transgender and transitioning from male to female.

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim.

Total beat down on the district judge.

Unlike sexual orientation discrimination which has only more recently been recognized as a form of sex discrimination under employment discrimination laws, discrimination on the basis of gender and sex stereotypes has been recognized as an unlawful form of sex discrimination under Title VII since Price Waterhouse v. Hopkins in 1989 and commonly extended to cover transgender discrimination.

The Sixth Circuit also rejected the employer’s argument that accepting her identity burdens his exercise of religious freedom.

Although in last week’s post I opined that SCOTUS likely won’t hear any of these cases until more circuits weigh in and a circuit split in new cases exists; however, with the interplay of the religious issue SCOTUS might be more inclined to hear this case given its recent desire to hear cases on religious freedom issues.

What this means for Colorado employees

Another decision outside of the Tenth Circuit bears no direct effect on Colorado employers or employees but it brings us closer to a day when the Tenth Circuit may find allies on either side of its own decision on LGBT issues. If this case makes its way to SCOTUS and the court decides to weigh in on the LGBT issues under Title VII then the issue may be settled under federal law for Colorado. For now employees facing LGBT discrimination in Colorado enjoy protections under state law so the issue is less urgent in this states than other less forward-thinking states. Colorado employees facing LGBT discrimination in the workplace should contact a Denver employment lawyer for help.

Denver marijuana employment laws

Colorado Lawmakers to Consider Prohibiting Marijuana-Related Employment Discrimination

Colorado made news in 2015 when the lawsuit involving Dish Network firing an employee for marijuana use was upheld by the Colorado Supreme Court. In 2012 Dish Network fired Brandon Coats, a paralyzed medical marijuana patient, for failing a drug test. He filed a lawsuit under Colorado Revised Statutes 24-34-402.5. The Colorado Supreme Court held the language of the statute prohibiting employers from terminating employees for engaging in lawful activity did not apply to conduct unlawful under federal law. Denver NORML is pushing for legislation to amend C.R.S. 24-34-402.5 to protect employees from termination for off-premises marijuana use.

 

Coats v. Dish Network

In Coats v. Dish Network the Colorado Supreme Court considered whether C.R.S. 24-34-402.5 protects activity lawful under state law but not federal law. This statute generally prohibits employers from firing or otherwise taking an adverse employment action against the employee on the basis of lawful activity during off-work hours. Under the statute employees can still be terminated for lawful activity during work hours. Coats argued through his attorney that Colorado had legalized his medical marijuana therefore his use was lawful. The Colorado Supreme Court took the opposite position holding that the statute did not prevent employers from taking action against an employee for activity that was unlawful under federal law.

Proposed legislation to change the outcome in future marijuana employment cases

Denver NORML proposes legislation that extends Colorado’s Unfair Employment Practices statute (C.R.S. 24-34-402.5) to protect employees from adverse employment acts by the employer for using marijuana off work hours or from testing positive for marijuana in a drug test. The proposed legislation will still allow employers to take action against an employee who uses marijuana at work or is under the influence of the drug at work. The advocacy organization will begin lobbying for the legislation this winter. The proposed statute is sure to find opposition from the business community in the state who expect a high degree of servitude from their employees. This proposed statute is similar to a law already enacted in Maine for the same purpose.

Contacting a Denver employment lawyer

If you believe your employer took adverse employment action against you on the basis of off duty activity then you should talk to a Denver employment lawyer right away. Employees in Colorado are generally protected from termination and other adverse employment acts on the basis of off-duty activities. Although for now partaking in marijuana is not protected by the Colorado Revised Statutes, it will likely only be a matter of time before Colorado employment law changes to align with the state’s legalization. State or federal law may provide other claims related to your off-duty activities. Contact a Denver employment lawyer to discuss your situation.