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What might a Biden presidency mean for labor and employment law?

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It seems a near certainty that Biden has won the 2020 election despite less than spectacular turnout down-ticket for Democrats. Early speculation has begun how a Democratic administration might shape various policy areas. Labor and employment law are no exception to the speculation. Democrats typically are considered more labor friendly and advance, at least mildly, pro-employee law. Let’s jump into the fray and see how Colorado employees might fare under a Democratic presidency for the next four years.

Remembering Trump’s labor and employment law policy

Honestly, not much can be said about Trump’s labor and employment law policy over the past four years. The administration stocked administrative positions with Republican allies but otherwise made very little movement towards dismantling federal labor law or employment law.

Certainly we could point to a few examples but mostly the Trump administration continued its normal modus operandi of not doing much at all. A pessimistic view of the administration may consider the administration too lazy to have done more, leaving actual policymaking to Senate Republicans and the handful of more motivated participants.

An optimistic view may point out that the administration understood a substantial part of its base comes from blue collar workers who might be lost watching the administration take aggressive and apparent moves to dismantle job protections.

Instead, the administration’s labor and employment law legacy will come in the way of indirect effects. The Trump administration’s long term impact on labor and employment law will likely be felt over decades with the appointment of several young conservative Supreme Court justices who have and will maintain a pro-employer bench.

The tax cuts passed during the Trump administration will likely continue to have a negative effect for most employees. The tax cuts promised job and wage growth but turned into the predicted payday for stockholders as companies used newly liberated financial resources for stock buybacks. Over the long term the decapitalization of businesses will require companies to oppress increased employee compensation and force reductions in force, especially as covid continues to put pressure on many service-based industries.

What may influence Biden’s labor and employment law policy?

Before considering individual policy issues, let’s first consider the stakeholders in a Biden administration and what they may push over the next four years. The traditional Democratic base is considered what are often called “special interests” by the right: people of color; unions; women; environmentalists; urban dwellers; academia and college-educated voters.

This election, even more than 2016, saw something of a realignment. Biden pushed his credentials in the black community while veering the party to the right to try to capture disaffected conservatives. Other people of color were pushed to the side and while Biden enjoyed broad support among women, it was Trump who made an explicit plea to a group of women (suburban women).

Biden campaigned hard in union heavy states like Pennsylvania and Michigan but made little open promise to do anything for union workers or lower paid workers in general. (Although he campaigned mildly in support of a minimum wage increase.)

When Biden takes office and has to pay his debts from the election, it is highly likely that he is going to offer little to the unions and other stakeholders who formed his base. Democrats are already openly discussing the need to compromise with the uncompromising Republicans. Biden, long on the right of the party, depicts himself as a regular guy from Scranton but his career in politics suggests otherwise.

Unions fought hard to campaign for him and become a participant in his administration; however, even through the campaign Biden has surrounded himself with people with an even worse record towards worker rights. Biden’s voting record is not endearing. He voted for NAFTA and the TPP along with the 2005 bankruptcy bill that severely punished working people for debts while making it easier for business interests to wipe out their own.

Of course, there is also the matter of those Republican voters who pushed him to victory. It appears despite Biden taking the White House Democrats failed to motivate voters downticket. Current results show Democrats losing seats in the House along with losses at the state and local level. The only serious explanation is that Democrats failed to motivate voters for any reason other than orange man bad. Voters seem as lukewarm on the idea of Democratic leadership as they are Trump leadership.

Democrats now have an example of how they can move to the right and take the White House. Unfortunately the party will likely move to the right while ignoring their losses downticket. Speaker Pelosi has already claimed the election as giving them a mandate to govern, an interesting opinion for somebody who lost supporters in the election. We should expect that Biden will capitalize on his “mandate” and govern from well into the right.

What a Biden labor and employment law policy might produce

Right wing media outlets from The Hill and onward might want to depict Biden as some socialist, labor extremist but that would be an about face for a politician with nearly fifty years of contrary experience. As discussed above, the Biden administration has fewer debts to pay to labor and working people than perhaps any Democratic president in the past hundred years. Biden could prove this wrong and pay his debts in the way of strong nominations to the EEOC, NLRB and federal judiciary. He could champion minimum wage increases and all his other labor and employment law campaign promises but there is little to suggest that is going to happen.

Wage issues

The Biden campaign supported pro-employee wage policies but signs are not promising we will see much movement in the next four years. Biden mildly campaigned in favor of a minimum wage increase to $15/hour but this was never much of a component of the campaign. Biden has never been a significant advocate of increasing minimum wage and if he governs to a coalition of Republican voters it is unlikely that will occur. Democrats have not been especially vocal at the federal level on minimum wage increases in more than a decade when minimum wage increased to $7.25 under a 2007 law.

Biden also claims support for the Paycheck Fairness Act which would strengthen the Equal Pay Act by narrowing the reasons why an employer can have disparate compensation between the sexes. Democrats may press to pass this law early in Biden’s term so they can point to a pro-worker accomplishment for the next four years. This would also put Republicans in the position of having to pass the law or lose out on the opportunity to make an appeal to suburban women in 2022 and 2024.

Labor Rights

Biden historically has talked up unions and worker rights despite not doing much about it in his long political career. We should expect some small acts by the administration but there is little historical evidence that Biden intends to expend the political capital necessary to strengthen organized labor. The proposed PRO Act would accomplish this goal. Biden claimed support for the legislation on the campaign trail but moving on it as president will take more than writing support on a campaign website. Biden will have to overcome the GOP majority in the Senate which seems unlikely to want to pass legislation designed to help a traditionally important Democratic support structure.

Like Obama, Biden will probably do a good job supporting the NLRB as a low key but critical benefit for organized labor. The NLRB rules on labor violations and a Democratic majority is likely to swing the board to pro-employee from Trump’s Republican majority.

Pregnancy Discrimination

In September the House passed the Pregnant Workers Fairness Act which would require employers to make reasonable accommodations for pregnancy and childbirth similar to those required by the Americans with Disabilities Act. Much like the Paycheck Fairness Act, this may pass the GOP Senate. The U.S. Chamber of Commerce supports the bill which is telling of Republican support.

Employment security

As a long time ally of business interests, Biden is unlikely to do much to reverse the mostly bipartisan assault of worker rights over the past several decades. He is unlikely to spend the political capital to champion a reversal of Republican tax cuts or support any green initiatives that risk business interests that might in turn lose his newly found base of Republicans. With a looming economic collapse due to college and housing debt, Biden is unlikely to do much to help workers protect themselves from the inevitable waves of unemployment.

Similarly, Covid-19 will remain a substantial issue for the next year or more. Biden is less likely to support blind openness through rising infection rates, certainly not to the detriment of Democrat governors around the country, but never expressed any real desire to support worker bailouts seen in other developed nations. Democrats support shutting down businesses to slow growth but their anemic support for the affected workers has understandably disconnected them from working class support. Biden is likely to continue this approach having given no indication he feels differently.

Can an employee be fired for no reason in Colorado? Part 1

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Colorado employees often find themselves fired, terminated, let go, laid off, etc. for reasons that may not have anything to do with violating workplace rules or poor job performance. An employee in that position reasonably questions whether the reason he or she was fired was wrongful or violated their Colorado employee rights.

Under Colorado employment law employees who work under at-will employment can be fired for no reason at all.

Employers can terminate employees without a job-related reason or on the basis of bad information or even a bad reason. The employer’s power to fire employees is not unlimited, however. There are many reasons under federal and Colorado employment law why an employer may not fire an employee even in an at-will employment relationship. If you believe you may have been fired for an unlawful reason then you may have a claim for wrongful termination and you should talk to Denver employment lawyers right away about your potential claims.

This post will be a series of posts regarding wrongful termination in Colorado. 

What does it mean for an employer to fire for no reason in Colorado?

In most cases employers do not randomly terminate employees without a particular reason. It is expensive to find, hire and train employees. Every employee fired is a lost investment of those resources so employers typically do not casually fire employees. That does not mean every employer termination decision is rational or based on a thorough investigation.

Colorado employers can fire you for no reason even if it is not a financially smart decision. Employers sometimes fire workers for extremely stupid reasons or for good reasons but on the basis of bad information or insufficient investigation. Unfortunately federal and Colorado employment law allow employers to make decisions to fire employees without any minimum explanation, reason, or investigation.

The basis for an employer’s power to fire you for no reason in Colorado comes from the at-will employment relationship. Let’s talk about what that means under federal and Colorado employment law.

What is at-will employment under federal and Colorado employment law?

In this country employment relationships in all states but Montana are by default at-will employment. At-will employment means the employment relationship exists at the will of both parties. In other words, the employment relationship lasts as long as both the employer and employee agree to continue it. Either party can terminate the relationship without consequence or permission of the other party. Over time federal and Colorado labor and employment law created exceptions to the at-will employment doctrine discussed below but the default assumption is that unless an exception exists or the parties have created a different relationship then the employment relationship is at-will.

Federal and Colorado law creates at-will employment under the legal fiction that employer and employee have equal bargaining power when creating an employment relationship. Anybody who has ever worked a job knows that is pure fiction. Employees need their jobs to pay bills and live while employers can easily fire an employee and either hire somebody new or assign the terminated employee’s work to other employees. Nevertheless, the at-will employment doctrine allows employers to fire for no reason any employee who works under this type of relationship.

Employment relationships that are not at-will employment in Colorado

An employee does not have to work under the at-will employment doctrine. Contractual employment and bargained employment agreements are not at-will employment because they create employment relationships that cannot be terminated on the whim of either party.

Employees may work under contracts that create many different conditions that regulate how an employer or employee can terminate the relationship. These can be term contracts, such as employment for one year, or contracts without a specific length. Employment contracts often include provisions describing what reasons an employer can terminate the relationship or set standards for job performance that an employee must fail to meet to be fired. Under these contracts an employee cannot be fired for no reason.

Employees can also work under collective bargaining agreements. These agreements typically exist in union workplaces in which the employees work under one agreement that covers the employment of many workers.

Collective bargaining agreements can lay out specific procedures to fire an employee and reasons why an employee can be fired. CBAs are not just creations of contract law. They are also creatures of federal and Colorado labor law which create additional protections around union participation and require employers to follow procedures that inject some degree of fairness into termination decisions.

What is wrongful termination in Colorado–Colorado labor laws and termination

Exceptions to the at-will employment doctrine exist in federal and Colorado labor and employment law as statutory and common law creations. That means either a statute passed by the federal or state legislature explicitly prohibit certain reasons why an employee can be fired or courts created specific reasons why the constitution or other laws do not allow an employer to fire you. There are many exceptions under federal and Colorado law–too many to list out entirely here–but some common ones include:

These and other exceptions to the at-will employment doctrine commonly include extremely precise rules to apply so if you believe your employer fired you for an unlawful reason then you should contact Denver employment lawyers right away to discuss your situation and see if you have a claim.

Wrongful termination in Colorado can also arise if you work under a contract or collective bargaining agreement and the employer terminates you in violation of the terms of the contract. These claims are different from wrongful termination when an employee is fired in violation of a statute or common law exception to at-will employment because they are contractual claims. You should also contact a Denver employment lawyer to discuss a claim for wrongful termination for violating a contract or CBA.

If an employer fires you for no reason or for a reason not prohibited by law or contract then your employer likely acted legally and you may not have a claim for wrongful termination in Colorado. You may still have a claim for unemployment benefits and can file for unemployment even if you do not have other legal recourse.

In the next post on wrongful termination in Colorado we will delve further into some of the common unlawful acts that make up a wrongful termination lawsuit in Colorado. 

Colorado Labor and Employment Law 2019 Legislative Session Review

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With the 2019 legislative session here in Colorado behind us it is time to check out how workers performed. The 2018 midterm election ushered in a Democratic majority but a purple state like Colorado is not always the most aggressive state for labor laws and employment laws favoring

workers. Many areas of Colorado remain deeply red and antagonistic to employee rights both in specific industries and across the workforce. This year brought a large number of labor law and employment law bills in both the state house and senate, many favoring workers. Not all bills succeeded but overall workers fared well. This earlier post discussed the 2019 proposed labor and employment law bills in greater detail.

employment discrimination lawyer in Denver, Colorado

Employment discrimination laws proposed for Colorado in 2019

The 2019 legislative session saw some…interesting proposals on employment discrimination as a result of the Supreme Court’s opinion in Masterpiece Cakeshop that generally found the Colorado Civil Rights Commission and the Colorado judiciary wrongly decided whether a business can discriminate on its supposed religious beliefs. Part of the opinion relied upon what the court viewed as an antagonistic view of the Colorado Civil Rights Commission of the shop owner’s religious beliefs.

Colorado Republics responded by introducing H.B. 19-1081 which would have made it harder to prove discrimination complaints before the Civil Rights Commission.  In short, this bill would require Colorado to finance a legal defense for a business accused of unlawful discrimination and repay the business if it ultimately prevails. Thankfully this ridiculous bill failed. 

A second Masterpiece Cakeshop related bill, H.B. 19-1111, would require members of the Colorado Civil Rights Commission to undergo First Amendment training to avoid repeating what the Supreme Court found offensive about the commission’s behavior. Although training on civil rights is not a terrible idea, the purpose of this law was to backdoor a legislative admonishment  to the Colorado Civil Rights Commission. This bill also failed.

Non-Masterpiece Cakeshop employment discrimination bills

A few employment discrimination bills unrelated to Masterpiece Cakeshop also made their way to the Colorado legislature.

H.B. 19-1039 proposed making it easier for transgender individuals to obtain government identification documents. While this bill does not directly apply to employment settings it likely will reduce instances of hiring discrimination against transgender workers who present as a different gender from the gender or sex marked on state identification. H.B. 19-1039 passed.

S.B. 19-056 proposed allowing employers to give veterans preference for jobs as long as the veteran is as qualified as other applicants. This bill intended to clarify existing law permitting preferred hiring for veterans by sharpening language prohibiting veteran preference to act as pretext for other forms of discrimination. This bill failed the 2019 Colorado legislative session.

H.B. 19-1025 proposed “banning the box” by limiting inquires into criminal backgrounds on initial applications for many jobs. Many employment discrimination lawyers observe that questions on criminal backgrounds often result in discrimination in hiring practices against people of color as a result of institutional racism in the criminal justice system. H.B. 19-1025 passed.

S.B. 19-085, the Equal Pay for Equal Work Act, proposed an explicit prohibition on pay-based mechanisms of sex discrimination. This Colorado bill creates state remedies similar to the federal Equal Pay Act. The Equal Pay for Equal Work Act also prohibits employers from asking about pay history which has historically allowed prior acts of sex-based pay discrimination to follow employees through their careers. After years of fighting to pass similar bills, S.B. 19-085 succeeded. S.B. 19-085 will go into effect in 2021.

Family and medical leave laws proposed in 2019 Colorado legislative session

The 2019 Colorado legislative session took yet another stab at expanding family and medical leave laws for employees. Colorado workers already enjoy family and medical leave protections under the federal Family and Medical Leave Act and the Colorado Family and Medical Leave Act; however, these laws only protect the right to take unpaid leave for family or medical situations. Many employers allow or require employees to exhaust paid sick time or vacation time but once paid time off runs out the employees must choose between unpaid leave or returning to work prematurely.

H.B. 19-1058 proposed creating family leave savings accounts similar to Health Savings Accounts (HSA) or Flexible Spending Accounts (FSA) for family and medical leave. Like an HSA or FSA it provides benefit to those employees who can afford to set aside funds but does nothing at all for working class employees most financially vulnerable to unpaid leave from work. Employees are already free to save money for unpaid leave. This bill would have done little more than create another tax shelter for wealthier employees. This bill failed.

S.B. 19-188 proposed creating paid family and medical leave as a statutory right. Paid family and medical leave has been proposed several times in Colorado but fails due to strong resistance by business groups and their lobbyists. Eventually the proposed bill set out in the Colorado Senate only created funding and programming to study the creation of a state insurance program to pool the costs of paid family and medical leave. This bill passed. Creating a formal program to study the issue is great but leaves open the door that the eventually analysis will be diluted to worthlessness by business interests.

Wage and hour bills proposed by the Colorado legislature in 2019

Colorado also saw movement on minimum wage and other compensation issues on behalf of employees. The result of four bills proposed in the 2019 legislative session favored employees.

H.B. 19-1210 proposed creating a statutory right for Colorado cities to set their own minimum wages higher than the state’s own minimum wage. One might think such law is needless political pandering by Democrats but that is not the case. Around the country business interests pursue legal avenues to prevent this from happening. They file lawsuits challenging the authority of cities to set higher minimum wages along with statutes prohibiting cities from setting their own minimum wages.

Creating a statutory right for cities to enact their own minimum wages higher than the state minimum allows larger metro areas with higher costs of living to set minimum wages matching those costs while not requiring smaller towns across Colorado to follow suit. This bill passed into law but I expect to see judicial challenges to its constitutionality nevertheless.

H.B. 19-1267 proposed making it a felony to fail to pay wages to a worker when the amount of unpaid wages meets or exceeds $2000. Colorado labor and employment law already contains criminal and civil penalties for failure to timely pay wages; however, like in most states these penalties are mild and ineffective at deterring employers from paying employees waged owed. Hopefully raising the stakes will nudge employers to do the right thing and pay wages in full and on time. This bill also passed.

S.B. 19-022 proposed funding a bonus program for teachers who are “highly effective” at their jobs. This Republican bill responded to demands this year for higher teacher pay through typical tactics of wanting workers to fight each other over scraps and make them teach to bonus metrics rather than to the curriculum. Democrats refused to join the bill and as a result it failed.

H.B. 19-1107 proposed providing funding for state programs to provide job training to lower income and unemployed Coloradans. State programs create an alternative for workers to improve job skills and earning potential from expensive college and technical programs. This bill passed.

Labor law bills proposed in the 2019 Colorado legislative session

This year’s legislative session only brought one labor law bill to the floor but it proposed an incredible shift in Colorado labor law. H.B. 19-1101 proposed prohibiting employers from requiring union membership as a condition of employment. Colorado has a unique function under the Colorado Labor Peace Act in which an employer may be required to only employ union workers if a second vote, following the vote for union representation passes, with a supermajority to close the employer from nonunion employees.

Union opponents often criticize closed shops or union shops as destroying a fictitious free labor market and push these types of bills to make it more difficult for unions to provide effective representation in the workplace and weaken their ability to pool resources for that purpose. If employers can always hire nonunion workers then the employer has a reason to hire workers who are unlikely to join the union. That increases the likelihood workers may vote away the union and at a minimum reduces support for the union in the workplace. Thankfully, this bill failed.

Other labor and employment laws proposed in the 2019 Colorado legislative session

A smattering of labor law and employment law bills were proposed in this Colorado legislative session.

S.B. 19-018 proposed reducing the driving age to receive a commercial driving license to eighteen. This bill opens job opportunities to younger adults by eliminating a legal barrier to jobs requiring operation of commercial vehicles. This bill passed.

H.B. 19-1119 proposed expanding access to records of peace officer internal investigations. While not directly a labor or employment law issue, this bill would indirectly affect the employment record of peace officers in the state. Easier access to negative investigation findings may limit opportunities for affected officers. This bill, however, passed.

H.B. 19-1105 proposed permitting nurse practitioners to treat workers compensation patients. This also passed.

H.B. 19-1117 proposed requiring the Colorado Department of Regulatory Affairs to regulate professions in the least restrictive means possible to avoid public harm. While that might sound okay on its face the function of the proposed statute is to create a judicial avenue to challenge any regulatory system and force the government to defend any professional regulation.

Typically government regulation need only prove a rational basis; this bill would require DORA to meet a high burden by proving it regulated from the least restrictive means possible and that the purpose of the regulation can only be to avoid public harm. This Republican-led bill failed.

Conclusion

Overall this session advanced the interests of Colorado employees and defeated several bills that would have had broad negative effects for workers. While we could always chase a better result, we should be happy that Democrats took a step forward and fought for employees. The totality of bills passed in this session reflects the Democrats in the legislature and the presence of a more liberal Democrat in the executive than the bland governor he replaced.

Is 32 hours considered full time in Colorado?

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Many Colorado employers provide employee benefits, pay differentials, job assignments and other important benefits on the basis of whether an employee works full time or part time. This can lead to a lot of questions about what is full time under Colorado employment law. These questions typically do not exist when employees work a forty hour workweek but usually arise when employees work thirty-two hours or some other slightly lower number.

For example, you might wonder is 32 hours considered full time in Colorado. The answer depends upon to what issue the full time status relates.

Today’s post will explore some of the common issues in determining full time status under Colorado employment law.

Basic rule for full time status in Colorado

Colorado labor and employment law does not contain an expansive definition of full time or part time status for employees. In general an employee is full time or part time based upon an employer’s own definition. Full time versus part time is often a dividing line for benefits or certain positions but that line is typically not drawn out of a federal or Colorado employment law.

However, several employment law statutes set minimum or maximum limits for how much an employee may or must work to obtain a specific status under the law. Examples include:

  • Employees must work 1000 hours within a calendar year to obtain FMLA eligibility which might informally be considered a full time employee;
  • Minors generally have limited maximum hours of work within a workweek and cannot be required to miss school hours for work;
  • Employees working in certain transportation jobs may be limited by how many travel hours they may complete in a day or week;

We will talk about some common statutory minimum hours for full time status under federal and Colorado employment law in greater detail although it is important to note that the term “full time” is not common statutory or regulatory language in federal and Colorado law.

When a labor law or employment law does not set a minimum or maximum hourly requirement it is generally up to the employer or an agreement between employees and employer to determine when full time status kicks in for particular benefits, job assignments, compensation and so forth. Many Colorado employers consider full time a forty hour workweek schedule but some draw the line at a smaller number. Some employers set the line at thirty-five or thirty-two hours, particularly in industries like restaurants and retail where employees might work flexible schedules or less than a five day workweek.

The best way to assess whether you are a full time employee in Colorado at thirty-two hours is to focus on the specific subject in which the full time status applies. Review your employer’s documentation and legal resources to determine the answer as it applies to that subject. You might be full time for some subjects and not for others.

Applying a single rule to every workplace issue might result in misinforming yourself. Operating on misinformed positions could put your job at risk. As always, if legal issues are involved in your question you should consult employment lawyers in Colorado as soon as possible.

Overtime pay in Colorado

Overtime pay is not exactly a full time versus part time issue but it definitely deals with the work hours for an employee. Federal and Colorado overtime laws calculate overtime pay for all hours in the workweek exceeding forty hours of work for all nonexempt employees. For this purpose an employee can be considered a full time employee at forty hours under the statute. An employee working overtime hours is more than full time. An employer could begin paying overtime pay at thirty-two hours if it wishes but that is an extremely uncommon practice.

Employee benefits and full time status

Most employees care about full time status because employers make benefit plans available to full time employees but may not extend them to part time employees. When we think about employee benefits from an employment law perspective we can think of them in two categories. The differences in categories is important to how and when an employer may make benefits available to employees based on work hours.

Regulated benefit plans under federal and Colorado employment law

First are employee benefit plans regulated by law. For private employers this typically falls under ERISA, the federal law regulating many types of employee benefit plans including:

  • 401k plans
  • Defined benefit pension plans
  • 403b plans
  • Health care plans (e.g. health insurance)
  • Cafeteria plans (e.g. reimbursement benefits)
  • Certain long and short term disability benefits
  • Some severance benefits

Employees of federal and Colorado government agencies often offer similar benefits operated under a plan regulated by state or federal laws as applicable. Although the complex regulatory apparatus behind ERISA does not apply to these plans they still generally follow similar regulatory mechanisms.

Benefits regulated by ERISA or other laws must operate as a plan with established rules. The applicable laws often set requirements for eligibility to the plan. Often employers may establish rules for eligibility based upon hours or length of service with the employer within the permitted confines of the law. Often employers can set eligibility on completion of a certain number of work hours in a year which effectively makes many part time employees ineligible for benefits.

A specific weekly hour threshold exists in the Affordable Care Act. Under the ACA employers must make available compliant health insurance to all employees who regularly work at least thirty hours in a work week. For the purposes of the ACA an employee is full time if the employee works thirty hours in a regular work week. Employers cannot set a higher limit for full time like thirty-two hours or forty hours.

Other benefits or fringe benefits

Employers may offer other benefits not regulated by ERISA or other laws. For these benefits an employer can generally set whatever constraints on eligibility it wishes. (Employers cannot use an unlawful motivation to extend benefits, such as unlawful forms of employment discrimination or in retaliation for complaining about a minimum wage violation.) These benefits include:

  • Paid time off (e.g. vacation pay, sick pay, personal days)
  • Company car
  • Most bonus programs
  • Training programs
  • Company sport programs
  • Free tickets to events
  • Raffles

Employers can set limits for work hours, length of service, job title and so forth to make these benefits available. If an employer sets a threshold for work hours as a full time employee for these benefits it may do so and even set different standards for each benefit. Often employers try to target a specific number for consistency, such as fort hours or thirty-two hours for full time employment across benefits; but an employer is free to have a more confusing policy.

Unemployment benefits in Colorado and employment status

Colorado unemployment benefits require that employees work for a given length of time and earn a minimum of $2500 during that period. It does not require an employee to work any specific number of hours in a workweek or for an employer to designate employees as full time employees. So long as an employee meets the length of service and wage minimums then the employee qualifies for a claim. (Assuming the employee otherwise qualifies.)

Some employers as a matter of course pay severance benefits to employees designated as full time employees. Here the issue may be complicated because a severance plan may fall under ERISA regulation but does not necessarily fall under ERISA regulation. The best way to begin answering that question is to review the severance information available from your employer which may include ERISA language.

NLRB revises independent contractors test for federal labor law rights

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Last week the Republican-majority National Labor Relations Board overturned its 2014 independent contractor test expanding labor law rights to more workers under the National Labor Relations Act. This unsurprising move reflects the Trump administration’s hostility towards administrative regulation and workers’ rights. The revised test will open the door for employers to classify workers as independent contractors to further erode worker rights and compensation.

The NLRB 2014 independent contractor test for labor rights

Under the National Labor Relations Act and its later amending acts, a worker obtains labor rights under the NLRA if the worker is classified as an employee. The problem is that the statutory language, like many labor and employment laws, lacks a clear mechanism to determine who is an employee under the statute. Courts and administrative agencies often rely on one of several common law tests. These tests weigh factors related to important components of the employer-worker relationship.

Historically the NLRB applied the common law agency test first focusing on the employer’s control over the worker and later shifting to focusing on the entrepreneurial opportunity for gains or losses. Ten years ago a challenge to the independent contractor classification of drivers at Fedex led to the D.C. Circuit applying the ten factor common law agency test and focusing on the entrepreneurial opportunity for gains or losses. (Fedex I.)

The D.C. Circuit in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) reviewed the NLRB’s historical application of the test and applied the test to hold the drivers were independent contractors and not employees.

In a subsequent NLRB proceeding in 2014 the labor board disagreed. The NLRB refined its application of the common law test to a test by adding a factor considering whether the independent contractor works for an independent business rather than the usual wink wink relationship that a worker is an independent contractor because the business says so. The now eleven factor test included:

  1. Extent of control by the employer
  2. Whether or not the individual is engaged in a distinct occupation or business
  3. Whether the work is usually done under the direction of the employer or by a specialist without supervision
  4. Skill required in the occupation
  5. Whether the employer or individual supplies instrumentalities, tools, and place of work
  6. Length of time for which individual is employed
  7. Method of payment
  8. Whether or not work is part of the regular business of the employer
  9. Whether or not the parties believe they are creating an independent contractor relationship
  10. Whether the principal is or is not in the business
  11. (New:) Whether the evidence tends to show that the individual is, in fact, rendering services as an independent business

The NLRB applied this refined test to find another set of drivers are employees. Agast, Fedex appealed the decision. The D.C. Circuit again insisted its pro-business interpretation was correct and the NLRB should have expected the same result. (Fedex II.) Nevertheless the NLRB refused to walk back its refined test.

The NLRB’s 2014 refinement of its independent contractor test makes tremendous sense in light of current trends in employment. Employers increasingly shift jobs from employee to independent contractor to avoid labor and employment laws and reduce labor costs. Jobs shift to supposed independent contractors who do not operate independent businesses, only work for a single employer and have their work substantially controlled by that employer.

Few disinterested and rational individuals would look at these relationships as anything less than employer-employee.

New NLRB decision on independent contractor classification

In 2018 a complaint was filed by franchisee drivers at DFW Airport alleging, under the NLRB’s refined test, that they are employees eligible to unionize under federal law. The employer was quick to point out Fedex II and the now Republican-majority NLRB agreed. It overturned the 2014 refinement returning to the ten factor common law agency test. 

“The board majority’s decision in FedEx did far more than merely ‘refine’ the common-law independent contractor test — it ‘fundamentally shifted the independent contractor analysis, for implicit policy-based reasons, to one of economic realities, i.e., a test that greatly diminishes the significance of entrepreneurial opportunity and selectively overemphasizes the significance of ‘right to control’ factors relevant to perceived economic dependency’…”

The majority claims it does not give entrepreneurial opportunity heightened consideration or raise it as a super-factor (as the court does in Fedex I) but it certainly devotes considerable space to that single factor before addressing in less detail any other. It’s difficult to imagine the majority did this unintentionally or that the board will not proceed with heavily weighing the entrepreneurial opportunity over other factors–at least in these contractor relationships.

In between 2014 and 2018 the NLRB rule gave employers pause from believing independent contractor classifications rid them of worry about unionization; but that pause is certainly over. Returning to a rule that makes it easier to avoid labor law concerns in the workplace does more than help employers sleep better at night or trim their legal budget for labor law attorneys. It incentivizes employers to structure jobs as independent contractors which in turn means fewer worker rights and less pay.

Labor and employment law bills proposed in the 2019 Colorado legislative session

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Colorado starts 2019’s legislative session with a healthy list of 227 proposed bills, many including provisions affecting the state’s labor laws and employment laws. Today’s post will briefly identify and discuss the major Colorado labor law and employment law changes proposed so far this year. Denver labor law will update as these bills move through the legislature and potentially become law.

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SCOTUS rejects mandatory arbitration for transportation workers classified as independent contractors

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Last week the Supreme Court dropped its unanimous decision in New Prime v. Oliveira penned by Justice Gorsuch, weighing in on the application of the Federal Arbitration Act to independent contractors of a transportation company. Many liberal media outlets describe the opinion as a win for workers because the court held in favor of the workers rather than the employer.

Even articles taking issue with Justice Gorsuch’s textualist approach to the Federal Arbitration Act consider the opinion a win without considering its broader effect that employer-side employment lawyers will surely grasp. Viewed from its broader consequences, New Prime is not without collateral damage.

A brief history of employment law and the Federal Arbitration Act

Mandatory arbitration became commonplace in employment contracts and employment agreements as a condition of employment after the Supreme Court heavily rewrote the Federal Arbitration Act in the 1980s.

In 1925 Congress passed the Federal Arbitration Act which enforces arbitration clauses in contracts covered by the act. The Federal Arbitration Act was designed to create a meaningful dispute resolution framework between businesses that conducted transactions across the country. It intended to avoid situations in which a dispute arose over a purchase agreement and the parties might end up fighting in court for a long period of time or maneuvering a dispute into a local court that might heavily favor one party over the other.

Instead the parties could agree to have a dispute resolved quickly by an arbitrator who was impartial and likely had familiarity with transactions in that industry.

Everybody seemed to agree with this history until we reached the excess capitalism of the 1980s. In the late 1970s and early 1980s enterprising businesses, primarily in banking and lending, fought to repurpose the Federal Arbitration Act to apply to consumer transactions. Courts agreed and mandatory arbitration agreements became part of many consumer agreements for credit cards, bank accounts, utility services and sometimes even retail purchases.

Arbitration in consumer agreements provides businesses several advantages over litigation. Arbitration proceedings are often cheaper and result in smaller adverse judgments. Companies have less incentive to settle and even when they lose they lose less. Arbitration proceedings are framed by the party demanding arbitration so it is often a friendly environment and avoids courts which may be more impartial.

Arbitration decisions are often not published so even when companies suffer adverse judgments they are concealed from the public which makes it harder for consumers to assess their potential relief in this forum.

Companies liked arbitration so much that they expanded mandatory arbitration to employment agreements. Employers in the 1980s and 1990s began requiring employees to sign forced arbitration agreements for employee claims under a wide range of employment law and labor law claims.

This was different from labor arbitration under a collective bargaining agreement in which the union and employer negotiated the terms of arbitration proceedings. Under these forced arbitration agreements, employers held absolute control over arbitration terms. Employees signed the agreements or lost their jobs.

Circuit City v. Adams and the FAA in employment agreements

In 2001 the Supreme Court rendered judgment in Circuit City v. Adams holding that the FAA applied to employment agreements. Adams applied for a job with Circuit City in which the employment application contained a unilateral agreement to arbitrate all employment claims. Adams later filed an employment discrimination lawsuit against Circuit City, which attempted to move the lawsuit into arbitration pursuant to this agreement.

The Supreme Court majority took on a tortured reading of the Federal Arbitration Act to reach this conclusion. Within the FAA are two relevant passages:

Section 1: “…nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.“

Section 2: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

At issue in Circuit City is how expansively Section 1 limits the FAA’s application to employment contracts and the extent any employment agreement not exempted by Section 1 falls within Section 2. The majority applies two different cannons of statutory construction to give the word “commerce” two opposing definitions in the same statute.

According to the majority, commerce in Section 1 must be narrowly defined because the section describes some of the workers. The applicable cannon of statutory construction mandates when a general term follows specific terms, the general term is interpreted as including items like the specific. As a result, the employees exempted by Section 1 only include employees involved in transportation (like railway workers and seamen). All other employee contracts are not exempt.

Conversely, commerce in Section 2 must be expansively defined because it lacks any limiting language and the FAA intended to expansively cover the extent of Congress’s power under the Commerce Clause.

(The reasoning here is awful and well excoriated by the dissenting opinions. It is well worth exploring but beyond the scope of this post.)

As a result of Circuit City we have expansive legal protection for forced arbitration in employment with very little limitation.

New Prime v. Oliveira and forced arbitration of independent contractors

New Prime deals with relationship between the FAA and non-employee workers. Here Justice Gorsuch’s majority opinion provides further confusion into interpreting the FAA in the employment context although he finds an interpretation that favors the workers in this particular situation.

New Prime is a transportation company that hires truck drivers as independent contractors. As part of their contracts the drivers agree to arbitrate claims related to their work on an individual basis. Oliveira filed a class action lawsuit on behalf of himself and his co-workers alleging wage-based claims. New Prime sought to remove the lawsuit to arbitration and chop up the class action into individual actions under its arbitration agreement.

Justice Gorsuch applies a supposed textualist approach to determine the drivers have contracts of employment under the Federal Arbitration Agreement. He advances the position that language of the act must be interpreted within the ordinary meaning of its time. He finds that in 1925 there was no distinction between independent contractor and employee and the term employment applied to all employment relationships.

Truck drivers are as well employees like railway workers and sea workers therefore they are the types of workers covered even among Circuit City‘s limited scope of Section 1. Therefore, although New Prime did not employ the drivers as employees their employment agreement fell within the FAA’s contract of employment language.

New Prime gives us an even more confusing view of the Federal Arbitration Act. Combining New Prime and Circuit City we have no consistent standard to interpret the statute. On one hand, New Prime tells us to read the statute in the context of its time but Circuit City tells us to read the statute in its modern setting in which commerce is defined in a much broader term than at the time the FAA was enacted.

We are forced to read Section 2 in a post-Wickard, everything-is-commerce interpretation but read section 2 in a pre-Wickard interpretation where commerce is narrowly defined. It’s almost like this kind of textualism is goal-oriented.

Why New Prime isn’t worth quite the praise it gets

Across liberal and legal press one can quickly find piece after piece congratulating Justice Gorsuch for overlooking his traditionally pro-business position to give the day to the workers in New Prime. (For example, here, here, here, here and here.) That oversells the inevitable impact of this opinion for labor law and employment law.

Sure, New Prime is a win for workers engaged in transportation jobs like those covered by Circuit City‘s interpretation of workers covered by Section 1’s exemption. Employers may no longer get away with properly or improperly defining these workers as independent contractors, rather than employees, to force them into mandatory arbitration agreements. It does not help them gain any other protections as employees but it does avoid mandatory arbitration. This is certainly a tremendous win for transportation workers regardless of their classification as employee or independent contractor.

However, New Prime‘s interpretation of Section 1 is not without collateral damage. Although all transportation workers may fall within New Prime‘s interpretation of Section 1’s exemption it does not mean those same workers may receive exemption under state law. In the end, all these workers may find themselves in mandatory arbitration anyway. It also does not help that New Prime doubles down on the narrow interpretation of Section 1 found in Circuit City.

The greatest problem with New Prime is that it leaves little question that SCOTUS definitely views independent contractor relationships as well within the FAA’s scope. Enterprising plaintiff-side employment lawyers are likely to find reason to challenge applying the FAA to independent contractor relationships particularly in light of last year’s Epic Systems opinion (and its basis in AT&T Mobility v. Concepcion) upholding class action waivers in mandatory arbitration employment agreements.

Denver public school teachers on the verge of strike

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

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

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

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

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

Downtown Denver, Colorado

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

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

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

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

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

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

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

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

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

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

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

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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?

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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.