Employment Law Blog

What is considered a living wage in Colorado?

Living wage has been a growing issue in labor politics and economic discussions in this country, particularly as unions and other worker groups began aggressively championing raising minimum wage over the past few years. Living wages are of concern here in Colorado as rent and home prices soared over the past decade. When living costs in Denver and other Colorado cities exceed local wages it prices workers out of their homes. Rising costs partially drove the push to increase Colorado minimum wage; however, minimum wage often fails to provide a living wage for Colorado workers. Today’s post will explore what is considered a living wage in Colorado and some of the legal concerns that arise in the debate.

What is a living wage?

A living wage is the hourly rate an individual must earn to support his or her family when that person is the sole provider and works full time. Living wage is not the same thing as minimum wage. Minimum wage is a minimum amount an employer may pay to an employee covered by the minimum wage law for work. Living wage considers the costs to that family to meet their minimum needs for self-sufficiency where the family lives. These costs change across regions rather than assume equal costs across the board. Note that a living wage is not a calculation of the wage necessary to live comfortably or move up the economic ladder.

Typically economists calculate living wages in light of the size of the family supported by the sole provider. For example, a Colorado employee without a significant other or children needs to earn far less than an employee supporting a family of four. This is for obvious reasons. Feeding four people costs more than one. Therefore, living wage varies not only by location but also by the size of the family supported.

Living wage in Denver, for example, requires a single employee to earn $12.95 which is above the current minimum wage. If that employee supports another adult and two children that number rises to $28.01, almost three times minimum wage. See your local living wage calculated using this calculator from MIT.

Colorado labor law final paycheck infographic

Colorado minimum wage vs. living wage

Minimum wage laws began as a way to end sweatshops and require employers to pay a living wage. Generally over time minimum wage laws in the United States failed to keep up with living wage requirements. Federal minimum wage set by the Fair Labor Standards Act is far below the living wage calculated in most parts of the country. Twenty-nine states have state minimum wages higher than federal law, including Colorado. Amendment 70 to the Colorado Constitution set minimum wage on a stair step to 2020 when increases tie to inflation.

Employees earning the Colorado minimum wage may still not reach a living wage. Considerations for calculating living wage include home prices, rent costs, utilities, food, transportation and healthcare. Although these are basic costs they do not include many expenses that Colorado employees may face. Nor do they include other financial considerations like retirement savings or entertainment.

Considerations for Colorado living wage

A living wage is not uniform across Colorado. Basic family expenses vary considerably across the state. For example, rent and home prices in Denver are far more expensive than most rural parts of Colorado. As expenses increase, so too does the living wage required to afford those expenses. Living wage is not always a linear increase with the urban density. For example, the Colorado Springs metro area requires only a slight decrease from the Denver metro area. Generally, however, urban areas are more expensive than rural areas in Colorado.

An important issue in Colorado is that living expenses are increasing at a rapid rate compared to wages. Studies of government data reflect living expenses increased three times as fast as wages. You can easily see how this happened with the explosion of both home and rent costs compared to even the increase in Colorado minimum wage. This is not a Denver problem. Growth in other large Colorado cities like Greeley, Loveland and Pueblo face the same struggles. Urbanization is not the only factor driving higher living costs. Many mountain communities have high living wages due to expensive housing costs, particular around tourist destinations.

A living wage in Colorado

Colorado employees must consider their location and how local cost variance affects their ability to support their families. The size of the family and location are key issues in self-sufficiency. An individual employee in Colorado needs to earn between $10.75 and $13 hourly just to sustain basic living costs. Note that even the lowest cost area of the state is above the Colorado minimum wage. For a family of four the living wage ranges from $24.00 to $29.00 far above the state minimum wage.

Unfortunately two income households do not fare better on minimum wage. In Denver a two income household with no children needs two earners making $10.55 hourly which is still above minimum wage. In lower cost areas a two income household with no children earn a living wage at minimum wage but fall below if they have a child.

This demonstrates how financially precarious life can be for many Colorado families. Lost wages or a lost job can send a family already struggling to meet their basic needs into complete financial collapse.

Legal issues and a living wage in Colorado

Families earning at or below a living wage in Colorado often work jobs at or near minimum wage. They may rely upon working multiple jobs (full or part time) and earning overtime pay. An employer refusing to pay wages earned by employees can have substantial effect on the employees and their families.

Employers who pay non-exempt employees below minimum wage steal from their workers and violate federal and state minimum wage laws. Employees in this situation have rights under federal and state law to recover unpaid wages through administrative or judicial means.

The same happens when employers fail to pay overtime pay owed to non-exempt employees. Employees earn overtime pay under federal and state wage laws. This is a higher rate of pay than minimum wage or the employee’s regular rate of pay. Employees can recover unpaid overtime pay through Colorado administrative procedures or in court.

Employers also sometimes fail to pay wages at all. Some ways employers fail to pay wages owed include:

  • Not issuing paychecks at all;
  • Failure to pay a final paycheck;
  • Shifting hours from one workweek to another to turn overtime hours into regular pay hours;
  • Removing hours from timesheets;
  • Requiring employees to work off the clock during lunches or before/after shifts;
  • Deducting hours or pay for impermissible deductions.

If your employer failed to pay some or all of your wages then you have rights to recover unpaid wages and other relief under federal and state wage laws. These laws may allow you to recover liquidated damages doubling the amount of unpaid wages, out of pocket losses caused by the failure to pay wages, attorney’s fees and court costs.

Additionally, your employer may not retaliate against you for complaining about or reporting unpaid wages. If your employer terminates you or takes other legal action for complaining about unpaid wages or reporting unpaid wages to a government agency then you have rights to recover for lost wages and other harm.

If you believe any of these unlawful acts occurred to you then you should talk to an unpaid wage lawyer in Colorado right away. An employment lawyer can advise you on your rights and how to proceed to receive the wages you earned. Speak to an unpaid wage lawyer as soon as possible. Many wage claims have short periods that require you to act to preserve your claim. The longer you wait to talk to a lawyer the more you risk not receiving the wages you earned.

EEOC or Hiring a Lawyer: When Do You Need an Attorney for Job Discrimination in Colorado?

Do you need an attorney for job discrimination in Colorado or should you rely on the EEOC to represent your interests? Employees who suffer discrimination on the job in Colorado likely have never had to deal with the EEOC or hire an employment discrimination lawyer in Denver. Learn more about when you may want to talk to an EEOC lawyer and when you do not have to work with the EEOC. This post will discuss:

  • The EEOC process;
  • When you must follow the EEOC process;
  • When you do not have to follow the EEOC process;
  • What an attorney for job discrimination can do for you; and
  • When you may want to talk to an attorney.

Employees in Denver and other parts of Colorado may have alternative procedures and remedies under state anti-discrimination law and we will touch on that issue as well; however, the primary focus of this post will be the EEOC process and federal employment discrimination remedies.

Most job discrimination claims in Colorado must go to the EEOC

If you believe you suffered job discrimination and need an attorney you need to know that many federal civil rights laws require you to first file a complaint with the EEOC before you can file a federal lawsuit. Most federal employment discrimination laws require you to file a complaint with the EEOC called a charge of discrimination. After filing your charge of discrimination, EEOC investigators will investigate and you likely will proceed through an informal settlement process.

If your complaint does not settle then you will either have the opportunity to have your case heard by an administrative law judge or file a lawsuit in court. The EEOC investigator may tell you that you do not need to hire an attorney for job discrimination; but that may result in missing options in your employment discrimination or hostile work environment claims.

EEOC Lawyer

Why you may want to talk to an attorney for job discrimination in Colorado first

You can file a complaint with the EEOC without hiring an attorney for job discrimination. The EEOC intake process for complaints is designed to allow workers to report discrimination on the job without an attorney. However, you may want to schedule a consultation or hire an attorney for job discrimination before filing your EEOC complaint. Your attorney for job discrimination may encourage you to follow the EEOC process. A lawyer can advise you how to proceed through the process and what to include in your complaint. Anything you leave out of an EEOC complaint likely cannot be pursued later so it is important to present a strong EEOC complaint.

Additionally, Colorado has its own state remedies for job discrimination. Colorado state law (C.R.S. 24-34-401 et seq) creates its own framework for dealing with job discrimination. C.R.S. 24-34-401 et seq. provides state law remedies for job discrimination broader than some federal anti-discrimination laws. The Colorado employment law also empowers the Colorado Department of Labor and Employment to receive charges of discrimination. The state agency can investigate and pursue claims of job discrimination. Colorado employment lawyers can advise you whether you should pursue your claims under federal or state law and with which agency to file your charge.

Employment discrimination lawyer Denver

When you can go straight to court under federal discrimination law

Most job discrimination laws require you to exhaust your administrative remedies through the EEOC or a state discrimination agency before you can file a lawsuit. Two federal employment laws do not require you to exhaust remedies before filing a lawsuit:

  • Age Discrimination in Employment Act
  • Equal Pay Act

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against workers over forty. It requires employees to file a charge of discrimination with the EEOC but does not require the worker to receive a Right to Sue Letter from the EEOC before filing a federal lawsuit. The worker must file suit, if desired, no earlier than sixty days after filing the charge of discrimination and no later than the ninetieth day after the EEOC concludes its investigation.

The Equal Pay Act prohibits discrimination in compensation between men and women. It does not require workers to file a charge of discrimination with the EEOC or receive a Right to Sue Letter before filing a lawsuit. Note that an employee may have sex discrimination claims under both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 which does require filing a complaint with the EEOC. Before deciding not to file a complaint with the EEOC you should talk to an attorney for job discrimination. If you have potential claims under both statutes and do not file a charge of discrimination and lose on your Equal Pay Act claim you may not be able to file a claim for the same discriminatory acts under Title VII. A lawyer familiar with the EEOC and anti-discrimination statutes can help you assess the best course of action.

When you can opt out of EEOC involvement in your Colorado job discrimination claim

You may be required by federal employment law to begin your job discrimination claim with an EEOC complaint. However, you do not have to keep your discrimination claim with the EEOC. You have the option under anti-discrimination laws to quit the EEOC administrative process and file a private lawsuit if one or more conditions are true. These include:

  • The agency has not responded with a decision within 180 days and no appeal has been filed on the complaint;
  • The EEOC issued a determination and neither employer or employee filed an appeal;
  • The EEOC does not respond to your appeal or the employer’s appeal with a determination within 180 days; and
  • You do not agree with the EEOC’s conclusion on your appeal.

The EEOC may choose not to pursue your charge of discrimination and issue a “Notice of Right to Sue” to you. If you receive a Notice of Right to Sue from the EEOC then you should talk to an attorney for job discrimination right away.

attorney for job discrimination in Colorado

Note that should you decide to pursue a private lawsuit you must do so within ninety days of the EEOC:

  • Issuing a decision and no appeal is filed;
  • Issuing a decision on an appeal to its initial decision; or
  • Declining to pursue your charge of discrimination and issuing a Notice of Right to Sue.

If you fail to file a private lawsuit within this limitations period then you may be barred from pursuing your claims in court. Therefore, it is vital that you talk to an attorney for job discrimination–if you haven’t hired one already–about your options. Waiting to talk to an employment lawyer or filing a lawsuit can be fatal to your discrimination claims.

Hiring a lawyer in federal court or go to the EEOC with your Colorado job discrimination claims

Often the EEOC administrative process will not result in a satisfactory resolution through its settlement or other administrative procedures. The EEOC may decide to file a federal lawsuit on behalf of you and your claims. The EEOC files federal lawsuits on job discrimination claims on few complaints but if it decides to pursue yours in federal court you have options. You may allow the EEOC to represent you in court. You can also choose to have a private attorney for job discrimination represent you. This can give you more flexibility and control over your case, particularly over settlements. If the EEOC represents you in federal court then the agency is not required to take direction from you on the lawsuit.

If you have already hired an attorney for job discrimination before filing your EEOC charge of discrimination then you and your attorney will make decisions about how to proceed with a trial at that time.

Hiring an attorney for job discrimination for your Colorado state law claims

As discussed above, Colorado state law also prohibits several forms of job discrimination. Under Colorado law you may also need to file a complaint with the Colorado Department of Labor and Employment. If you file an EEOC complaint you can request to cross-file the complaint with the state. Colorado law has similar administrative procedures as the EEOC. You may need to exhaust administrative remedies applicable to state law to proceed with a lawsuit that includes state law claims.

You should talk to a Colorado attorney for job discrimination about your case before filing a complaint with either agency. Your attorney can discuss the strategic considerations behind filing your claims under federal law, state law, or a combination of the two. Once you start taking action on your claims you may make decisions that limit your procedural options. Gain legal counsel before taking those steps to put the strongest case forward.

Finding a Denver employment lawyer for job discrimination

Employment lawyers in Denver and other parts of Colorado often have experience working with job discrimination claims under federal and state law. There are many ways to find an employment lawyer to advise you on your claims. Employment discrimination claims are among the more common claims handled by employment law attorneys in Colorado. Research lawyers and schedule a consultation with one or more to discuss your claims and consider representation. Employee rights lawyers in Denver and around Colorado can discuss the issues raised in this post with you along with other important issues to your potential lawsuit.

8 Popular Ways to Find Denver Employment Lawyers Online

For decades lawyer advertising centered on the yellow pages. Even after the Supreme Court concluded advertising bans violated the First Amendment in the 1970s and law firms began running ads on radio, TV, billboards and other outlets, the yellow pages was still the heart of law firm advertising. In the 1990s law firm advertisements became commonplace on television but you could still count on law firms spending money on advertisements in the yellow pages. That’s because as a culture the phone book provided important contact information for businesses and was treated as an authority source merely for publishing free listings of addresses and phone numbers. The yellow pages went away as a dominant law firm advertising resource as the internet grew in popularity and convenience. Today you can find a local lawyer and call right from the search results from a phone in your pocket or purse.

 

Finding lawyers online versus the phone book

Lawyer advertisements online are fundamentally different from the phone book. In the phone book, the publisher controlled the space entirely and law firms only had the choice to pay for the amount of advertisement they wanted. Standard listings were alphabetical without exception. The publication was highly regimented and it had to be because people expected the phone book to provide listings in that format.

On the other hand, the internet is more chaotic. Law firms advertise in search engine listings and spend considerable resources trying to position themselves within the organic search results. There are also businesses providing law firm and lawyer listings of both free and paid opportunities in addition to bar associations and lawyer referral services who provide listings. It’s not always easy to trust that the lawyers you find are the right lawyers to help you with your problems.

Navigating the internet for employment lawyers in Denver

Searching for a Denver employment lawyer online can be confusing and frustrating for several reasons. Many people think of labor law or employment law as a narrow field of law; however, it is a broad area spanning every facet of the employment relationship. These include:

  • Compensation and benefit issues;
  • Insurance law;
  • Finance and investment law;
  • Tax law;
  • Medical leave law;
  • Workers’ compensation;
  • Discrimination;
  • Wrongful termination;
  • Union and other collective employee acts;
  • Personal injury law;
  • HIPAA and other medical information protection laws;
  • Family law;
  • Gun possession law;
  • Criminal law; and several others.

Within this wide span of law you will likely find that not every attorney who practices employment law or labor law deals with every possible employment law issue or has expertise in the facts of a specific situation. Additionally, many employment lawyers in Denver and around the state represent only employees or employers. (Some employment lawyers represent both sides.)

An employee searching for an employment lawyer often begins not knowing if there even is a legal issue or the extent of legal issues involved. That makes it difficult to know what employment lawyers should be on the list to research or contact. As an employee you may have some idea that you have an unpaid wage issue or need a wrongful termination lawyer but there may be several other employment law issues involved in that situation. There is no single perfect path for an employee to take to learn enough about employment law to find the right employment lawyer just by researching online. You may have to contact one or more Denver employment lawyers for a consultation to discuss your situation and determine your next steps.

Conducting a Google search to find a Denver employment lawyer

Today most people begin searching for anything with a Google search and that includes finding a lawyer. (If not Google then another search engine.) Google does not review websites or businesses to categorize their search results. Instead it uses a complex algorithm to assess websites and businesses that it believes best apply to your search terms. For example, if you search “Denver employment lawyers” then the search engine will produce a list of websites it believes belong to Denver employment lawyers based upon the way it reads and scores the content of the website. The ranking for a given website is not an assessment of the quality or skill of the website owner. It only reflects how the website scores against the search algorithm (or a paid placement).

A search request for Denver employment lawyers will produce several types of results:

  • Paid placements;
  • Local results; and
  • Organic search results.

Paid placements

Within the search results you will see paid placements to put employment lawyers in favorable locations within the results. Often paid advertisements appear at the top of search results where you are most likely to click. Like the search algorithm, Google does not assess the advertiser’s skill or expertise before placing an ad. That is not to say the law firm placing the ad is not skilled or knowledgeable about your employee rights situation.

Local results

Local results reflect businesses matching the search terms in proximity to your current location. Local results are organized by its own algorithm that matches information about the business, user reviews and location to deliver a list of law firms that meet your search terms and proximity. The order of law firms produced is similarly not a question of Google conducting a review of the merits of each law firm. It is how much the information it has about each law firm best matches your search terms and location. Certainly the location of a law firm is an important consideration.

Organic search results

Organic search results reflect which employment lawyer website matches your search terms. The search algorithm is a complex formula with a long list of factors that include location, content, page speed, visibility, link profile and other factors related to the website. Google does not review lawyers for ranking, only how the website matches the search terms. Denver employment lawyers appear in various combinations of search terms (often for people searching in Colorado) and can vary widely in placement merely by changing the order of search terms. Law firms, like other businesses, often spend money to produce a website that ranks highly as a form of advertising.

Value of search results for employment lawyers

Although Google does not automatically produce the perfect lawyer in search results every time it can be extremely helpful to search for Denver employment lawyers in a search engine. It is a good way to familiarize yourself with local employment lawyers and their location. It is also a good way to research information about employment lawyers and employment law issues. The more specific your search the more targeted the results so searching for something more specific than “employment lawyers” or “employment lawyers Denver” can be very helpful to find lawyers who might be more familiar with the legal aspects of your specific situation.

Avvo

Avvo is a website that provides access to lawyer listings and other lawyer-related services. Avvo began in 2007 in Seattle with an evolving business model. It is most commonly known for two aspects: lawyer listings and the Q&A forum. Additionally, Avvo offers a legal form platform and a platform to ask lawyers within particular fields questions for a stated sum of money.

One is a lawyer listing system in which lawyer profiles are generated from information obtained from other sites (such as state bar websites) and given a ranking. The ranking formula is proprietary and confidential. Lawyers may claim their profile and add information which appears to improve rankings. Within the listings lawyers can pay to upgrade their account which removed ads for other lawyers from their profile and places them at the top of the listings for regional and legal area listings.

The other is a large free Q&A section organized by state and practice area in which lawyers can answer questions. The Q&A section is largely unmoderated so the answers provided may not be completely accurate. Lawyers gain points by answering questions which can move them up a second listing system categorized by points and practice area.

Avvo is criticized by some lawyers for aspects of the site, such as the ranking system, but it is a convenient place to find disciplinary history for lawyers and find basic information about attorneys who may not have robust websites. Avvo allows users to review attorneys (which it says do not affect ranking) which may be useful to consider.

(Avvo was recently acquired by Martindale.)

Martindale-Hubbell

Martindale-Hubbell (sometimes referred to as just Martindale) began as a paper directory of lawyers in 1868. Today it is an online directory and owns several other lawyer directory and marketing businesses. For most of its history it was considered the authoritative directory of lawyers. Martindale-Hubbell provides a peer review ranking which many lawyers continue to advertise. The business’s website includes law blogs and other legal information in addition to one of the largest lawyer directories in the world.

Lawyers.com

Lawyers.com provides another large directory of lawyers and a Q&A forum. The website was once an independent venture but is now part of Martindale’s collection of lawyer websites. Lawyer profiles on the website include information about the lawyer including:

  • Background;
  • Legal areas practiced by the lawyer;
  • Contact information;
  • Law school and bar admissions;
  • Peer reviews;
  • Client reviews;
  • Access to Q&A answers provided by the lawyer; and
  • Martindale ratings.

The website provides both a paid and free listing option to lawyers. Lawyers who opt for the free listing will display reviews and basic contact information while paid listings provide the other information as well. You can locate lawyers in the listings through location and practice area. For example, you can search for employment lawyers in Denver and find a list of the law firms within the site’s directory.

Lawyers.com is a good way to review information about lawyers although its free listing option provides less information than other free listings like Avvo. It is still another good place to review lawyer information.

Findlaw

Findlaw is one of the largest providers of legal content online including providing law firm websites, marketing and lawyer directories. It began in 1995 with acquisition by what is today Thomson Reuters in 2001. Findlaw sites appear prominently in searches for local lawyers and legal information. The business markets extensively to lawyers and law firms to join its services. The lawyer directory on Findlaw is today entirely paid. Lawyers appearing in the directory have paid to do so and no free listings exist.

Justia

Justia began in 2003 by a former Findlaw employee and provides a similarly large legal information site. Justia provides a wide range of information from statute and cases to Q&A to lawyer directories. The lawyer directory includes paid and free options. The free lawyer profiles contain information about practice areas, contact information and answers by the lawyer in its Q&A forum. You can search for lawyers on the website by location and practice area. Its profiles often also appear in search engine results.

Colorado Bar Association referrals

The Colorado Bar Association is a voluntary state bar available to lawyers across the state and all practice areas. It includes a referral service in which consumers may contact the bar to request a referral by location and practice area. Referrals are made from member lawyers so not all employment lawyers in the state obtain referrals through the service. Nevertheless, it is a good way to find employment lawyers who might be able to help you with your problem.

Plaintiff Employment Lawyers Association referrals

The Colorado Plaintiff Employment Lawyers Association, or PELA, is a voluntarily association of employment lawyers who represent employees. It is a state affiliate of the National Employment Lawyers Association (NELA) which is a voluntary national association of employee rights lawyers.

PELA offers a referrals service for employees seeking an employment lawyer in the state. Like the Colorado Bar Association, referrals are only made to member lawyers. Referrals requested through the website can select from a wide range of employment law issues which may help narrow the focus of a referral to an attorney skilled in your particular issue.

Which is the right way to find a Denver employment lawyer?

There is no single right way to find a Denver employment lawyer. Online research and referrals are good opportunities to find employment lawyers and research whether they may be equipped to help you with your employee rights issue. The profiles and websites for employment lawyers can help you understand which local lawyers may be a potential fit for your needs and may provide answers to employment law questions. Your research may consider several factors and ultimately you may need to schedule a consultation with one or more attorneys to find a Denver employment lawyer that fits your needs.

Denver Labor Law is not affiliated with and did not receive compensation from any entity discussed in this post. Denver Labor Law does not take a position on which, if any, of these entities may provide the best information or the best referral to a lawyer for your needs. If you believe you need an employment lawyer then you should begin researching and contacting law firms as soon as possible to discuss your situation. Rely upon the advice of a licensed attorney to discuss your situation and next steps. 

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.

Supreme Court overturns forty years of precedent to trash public union agency fees

At the end of June the Supreme Court dropped its expected ruling in Janus v. AFSCME which garnered minimal discussion in mainstream press despite likely having an enormous impact on our political system and many employees. Janus is in many ways a demonstration of the cumulative effect of the past twenty years of right wing politics in this county and its continued war on labor unions. Although the case mostly flew under the radar for most of the nation’s press, labor law observers have paid close attention and mostly uniformly predicted the Court’s conclusion. Let’s talk about the labor law issue involved and what impact the case will likely have for Colorado and its employees.

(I delayed writing about this case with the holiday but you can find earlier coverage on the topic here, here, here, here, here, here and here.)

Labor law and agency fees

The issue in Janus involves state laws requiring employees of a public employer (such as the City and County of Denver, or a Colorado school district) who are part of a bargained unit but not union members to pay partial fees for the benefits received from the union’s bargaining activity. Let’s break this down.

Union representation: right to work vs. closed shop laws

Under federal labor law, employees in covered employers can elect a union to represent the workforce as a unit to bargain over the conditions and benefits of employment. Labor law defines groups of employees eligible for representation by a single representative union as a bargained unit. These are employees who share work duties for which it makes sense to have a single representative. For example, all teachers in a school district might be a bargained unit or the machinists in a manufacturing shop might be a unit while the office staff is a separate unit. If the employees within the unit vote in favor of union representation then the union represents all employees within the unit–even if all employees do not voluntarily join the union.

States handle this aspect in a couple ways. In supposed “right to work” states employees do not have to join the union or pay union dues even if the union represents them and the employees receive all the benefits of the collective bargaining agreement struck by the union and employer. In “closed shop” states the employees within a bargained unit must be dues-paying members of the union. Although this can seem unfair, keep in mind that employees receive the benefits of the union’s bargaining of the CBA plus continued representation when issues arise under the agreement. The union has no choice under the NLRA but to represent all employees. So either state law requires the employees to pay for the benefits received from the union or the union eats the cost of helping its dues-paying members.

Right to work laws and agency fees

As a compromise solution in right to work states, unions can charge non-members within their bargained units agency fees. Agency fees are a reduced payment from full dues paid by non-union employees in the bargained unit to cover the costs incurred by the union for work performed on behalf of the non-members. Payment of agency fees means the union receives at least compensation for work performed but does not collect full dues that might also be used for other union purposes such as lobbying for employee-friendly laws or campaigning in representation elections in other bargaining units. These agency fees are at issue in Janus.

The Supreme Court first approved the use of agency fees in public employment in Abood v. Detroit Board of Education in 1977, which itself draws from case law twenty years earlier holding the same position under the Railway Labor Act. A series of cases since that time confirmed their constitutionality in light of the First Amendment. Writing in an opinion years later, Justice Alito questioned the constitutionality of the agency fees, signaling to right wing allies that it might be a good time to raise a new suit challenging them.

Enter Janus

Janus is an employee of a state agency in Illinois who worked in a bargained unit and paid agency fees under state law. With the backing of right-wing and anti-union groups, Janus filed suit to avoid payment of agency fees. The primary thrust of the lawsuit alleged the agency fees violated Janus’s First Amendment rights because the state law requiring agency fees is a government action requiring him to give money to a group that takes political action against his particular views. In other words, it is compelled speech. The lawsuit alleged that there is no way to really distinguish between how the union uses money collected from agency fees and union dues so he is forced by state law through his public employment to finance the union’s other political activities.

The lawsuit further alleged the agency fee issue is a matter of importance that rises to a First Amendment issue because the union’s bargaining is a matter of public importance. When unions bargain on behalf of public employees the union affects government decision-making and financing; therefore, the issue of agency fees is one of public concern and rises to the significance of speech protected by the First Amendment.

Supreme Court weighs in, overruling Abood

With a conservative majority, labor law observers expected the Supreme Court to overrule Abood and strike down agency fee laws, which is exactly what the Court did. The Janus majority opinion reads as a barely disguised criticism of public unions and sets up what is the beginning of a broader attack on unions under the First Amendment. The conservative majority on the bench have spent the past six years inching towards this position and finally get their win.

The majority casually overrules forty years of precedent with merely a handwaiving towards any concern about stare decisis. The bulk of Justice Alito’s majority opinion is spent making equally casual dismissals of Abood‘s reasoning and a union’s legal duty to represent non-members without payment of fair-share fees.

The bulk of the majority opinion relies on this chain of thinking:

  • The First Amendment protects an individual from compelled speech on behalf of ideas with which the individual disagrees;
  • Matters involving public employee compensation are budgetary issues and therefore significant enough that activity involving them implicate First Amendment protections;
  • Agency fees contribute to the union’s speech on those issues;
  • If the individual disagrees with the union’s position or tactics then the individual is compelled to support disagreeable political speech;
  • There is an “‘exacting’ standard” to analyze whether a law compelling speech violates the First Amendment;
  • Now casually dismiss all the reasons why agency fees might not violate the First Amendment.

Justice Kagan’s dissent dismantles the house of cards constructed by the majority to explain why Abood must be overruled; but its strength lies in attacking why claiming state budgets are federal constitutional issues is a ridiculous standard. Justice Kagan correctly points out that if public employment budget issues elevate agency fees to First Amendment protections then the same would have to be true for any other public employment budget issue. Any time an employee or group of employees raise compensation or workplace issues and suffer criticism or discipline (real or perceived) the employees could launch First Amendment lawsuits which will cause financial harm to states and interfere with their ability to act as employers–inconsistent with decades of other Supreme Court precedent.

Or–what will inevitably happen–the reactionary majority will carve out a union-only rule that only attacks unions.

The political impact of Janus

It’s hard to consider Janus anything more than a political favor to conservative political forces. The majority asserts one reason why the agency fee issue is of political importance is that states and cities are experiencing budgetary shortfalls for which public employee benefits are a significant issue. Although true, the vulnerability of public employees to budgetary issues is one reason why public employees and their unions have become important to protecting their own jobs. The drive to undermine public employee benefits and wages has led to greater growth in the importance and activity of public unions.

The divide between political forces seeking to cut public employee compensation and public unions is blatantly partisan. One only needs to look at the standoff only a few years ago between Wisconsin Governor Scott Walker and the state teacher’s union for the most visible example. By drawing funding away from the unions the Supreme Court majority puts its thumb on the scales for their political allies.

The reach of Janus is not just political for public unions. Diminishing the power and visibility of public unions will have the same effect on private employer unions. It will diminish resources available for other union fights like raising minimum wage and protecting employee benefits. Disabling public unions will allow politicians to cut state agency employment which in turn will make regulatory enforcement of important laws less effective. It will also allow them to cut public employee pay and benefits which in turn will lower compensation across all employers. In short, this is bad for employees everywhere.

Janus is another step forward for the reactionary Court majority which uses the First Amendment as a tool to rollback democratic forces in the country. The majority took its first big step with Citizens United–equating money with speech–and extends that forward here with Janus. We will likely continue to see the Supreme Court use the First Amendment as a tool to dismantle public accountability in the political system and further dismantle opposition to right wing political forces.

The effect on unions from Janus

The larger effect for unions is equally as obvious. Public unions in states with agency fee laws will lose out on not just immediate funding from the agency fees. The absence of any fees to receive the benefits of representation without paying a fair share for it will entice free riding and further reduce the union’s dues-paying membership. As a result, the ability for unions to successfully represent and lobby for working people will decline.

Although this suit deals directly with public union issues, the majority’s First Amendment analysis is so broad that it calls into question significant private employer issues under the National Labor Relations Act (NLRA) involving the federal law’s requirement for employees to pay agency fees under the same premise. The majority is, at least, signaling to private employers and their allies to take a shot at whittling away at private unions as well.

Observers on both sides of the issue have asserted unions will have to work harder to be accountable to their members and do a better job pitching why employees in bargained units why their should join the union. Although true, this is hardly a solution to the political and labor scale-tipping provided by the Supreme Court. Unions certainly could do a better job in many instances but in practice this does not happen and in a union-hostile environment it’s not always easy to sway people to pay dues when they can get many of the benefits for free. We certainly see that in right to work states where union membership is low. Moreover, the Janus decision sets up decades of undermining unions which will hardly be met by more persuasion in the workplace.

 

 

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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.

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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.