Quick Start Guide to Colorado Wage and Hour

Employees in both the public and private sector often question their rights to payment for their work. To clear up some of the confusion, here is a guide to everything you need to know about wage and hour laws in Colorado.

Employee Classifications

What is an “exempt” employee?

Under the Fair Labor and Standards Act (FLSA), exempt workers are salaried employees whose job duties fall within specific categories of work. Exempt work categories include bona fide executives, administrative or computer professionals, and outside sales workers. In Colorado, exempt employee status also extends to cover property managers, companions, babysitters, domestic workers, volunteers, supervisors, elected officials and staff, and certain types of drivers, mechanics, students, and institutional workers.

What is a “non-exempt” employee?

Non-exempt employees receive an hourly rate for each hour worked. Under federal and state law, employers must pay hourly workers at least the minimum wage for every hour worked up to 40 hours.

Pay Requirements

Are there minimum salary requirements for exempt employees?

Yes. To qualify for exemption under federal law, employers must pay salaried workers at least $455 per week. Colorado state law does not explicitly set a minimum salary amount; however, employers must pay salaried workers more than the minimum wage for all hours worked.

What is minimum wage for non-exempt employees?

As of 2019, the federal minimum wage is $7.25 per hour and $2.13 for tipped employees. In Colorado, the minimum wage is $11.10 and $8.08 for tipped employees. Tipped employees are workers who receive more than $30 per month in tips. A tipped employee’s regular pay plus tips must at least equal minimum wage.

When is an employee entitled to overtime pay?

Overtime pay equals one and one-half times an employee’s regular hourly rate. In Colorado, employees must receive overtime pay for any work over: (1) forty hours per workweek; (2) twelve hours per workday, or (3) twelve consecutive hours of work. It is a good idea to keep records of your schedule and hours worked, otherwise it can be very difficult to calculate what you are owed and to prove your claim.

Are employees entitled to bonuses or commissions?

Under state law, workers are not entitled to bonuses or commissions until they earn those funds. The analysis here is very fact specific and it will depend on what agreement you have with the company. One common issue is that a payment might come in after you have done everything you were required to do, but while you are no longer working for your employer. Whether you are entitled to those proceeds can be a fight, and it helps to have a lawyer.

What about holiday and sick pay?

Colorado law does not require nor prohibit pay for holidays, sickness, or bereavement. State law also does not require employers to provide time off due to illness or injury or provide extra pay for work on holidays. Again, an employee’s rights in these situations are very fact specific and will depend on what agreement you have with the company.

How soon will I get my final paycheck?

Employees can learn about the Colorado Labor Laws regarding final pay here: www.colorado.gov/pacific/cdle/final-pay The Colorado Division of Labor Standards and Statistics can be contacted directly with questions at 303-318-8441.

Consequences for Employers who break Colorado Wage Laws

If an Employer refuses to pay all earned wages, there can be penalties and fines assessed. You have the responsibility of making a formal wage demand in order to pursue this additional money. The instructions for filing a wage demand can be found here: https://www.colorado.gov/pacific/cdle/complaint-forms Knowing what you’re entitled to is more complicated than just a form, so speaking with an attorney is in your best interest.

Have your rights been violated?

If you feel your employer is violating your right to be paid fairly for your work, Livelihood Law is here to help. Contact us today so that we can assist you in figuring out your next steps.

The #MeToo Movement: What is Sexual Harassment?

#metoo

The term “me too” was originally coined more than a decade ago, by sexual assault survivor and activist Tarana Burke. But #MeToo became a social media phenomenon in October of 2017, when the New York Times published allegations against Hollywood mogul Harvey Weinstein from actress Ashley Judd and many other professional colleagues and employees. The allegations of sexual harassment and assault spread over a 30-year period and sparked a wave of awareness across the country, with many women and men sharing their personal stories of harassment.

The #MeToo movement sparked many conversations across the professional world about appropriate work place conduct. While this discussion may be long overdue, it’s left many people wondering what really constitutes sexual harassment?

Definition of Sexual Harassment

Sexual harassment is a type of sex discrimination that violates Title VII of the Civil Rights Act of 1964 and Colorado state law when it happens at work. According to the U.S. Equal Employment Opportunity Commission guidelines, sexual harassment can be unwelcome sexual advances, requests for sexual favors, and other verbal or physical behavior of a sexual nature when:

  • Submission to the sexual conduct is a term or condition of an individual’s employment, whether explicitly or implicitly.
  • Submission to or rejection of the conduct is a basis for employment decisions.
  • The conduct of a sexual nature has the effect or purpose of unreasonably interfering with work performance.
  • Sexual conduct creates an intimidating, hostile, or offensive working environment.

The important factor is that the sexual conduct must be unwelcome. Sexual conduct in the workplace is considered unwelcome whenever the recipient considers it to be so. Both men and women can be the victim of sexual harassment and the harasser and the victim can also be the same or different genders.

Types of Sexual Harassment

Sexual harassment generally falls into two categories:

  • hostile work environment
  • quid pro quo

If conduct of a sexual nature is severe or pervasive enough to affect the terms or conditions of a victim’s employment, it is generally a “hostile work environment.” However, “quid pro quo,” a Latin phrase meaning “something for something,” involves demanding sexual favors in exchange for a benefit or avoiding punishment at work.

Let’s apply these definitions to the real-world allegations against Harvey Weinstein. If the allegations that Weinstein asked employees to perform sexual favors are proven true, they could constitute quid pro quo sexual harassment. Even if Weinstein didn’t explicitly tell employees they would be fired or harmed at work if they didn’t go along with his demands, the threat was implied. Allegations that Weinstein appeared in front of some female employees naked or required them to do things such as give him massages, could also give rise to a hostile work environment claim because the conduct, if true, was so severe and pervasive that it affected work conditions for those employees.

Harvey Weinstein’s alleged behavior is an extreme example, but it’s important to remember that not all sexual conduct in the workplace rises to the level of harassment. Minor insults or one-time occurrences, unless severe, may not be considered sexual harassment. Moreover, the individuals involved generally need a more formal relationship than simply professional colleagues. In the suit filed by Ashley Judd against Harvey Weinstein, part of her sexual harassment claim was dismissed because she wasn’t an employee of Weinstein’s. However, if the employer knows that this inappropriate behavior is taking place, and doesn’t do anything about it, or penalizes an employee for raising their concern about sexual harassment, that is absolutely illegal.

In the age of #MeToo, inappropriate work place conduct is finally getting the attention that it deserves. If you have questions about sexual harassment and your employer’s actions, Livelihood Law is here to help, because no one deserves to be subjected to sexual harassment in the workplace. Our experienced employment attorneys are happy to talk with you about your concerns. Contact us here today.

5 Facts About Age Discrimination That You Need To Know

Age Discrimination

This year marks the 50th anniversary of the Age Discrimination in Employment Act (“ADEA”). Signed into law on December 15, 1967, the ADEA makes it illegal for employers to discriminate against workers aged 40 years old and up. Although the ADEA has been in place for 50 years, a recent AARP study found that the unfair treatment of mature workers is still commonplace. Of the adults that were polled, 61% reported experiencing or witnessing some form of age discrimination in the workplace.

Given these statistics, it is essential that mature workers know their rights. So here are 5 important facts you should know about age discrimination.

1. The ADEA applies to covered entities, but Colorado law covers every employer.

The ADEA prohibits age discrimination against workers who are 40 years old or older. However, this prohibition only applies to covered employers. An employer is a covered entity if it is a public institution or a private company with more than 20 employees who work for at least twenty calendar weeks (in this year or last). By contrast, Colorado’s anti-age discrimination law (the Colorado Anti-Discrimination Act, or “CADA”) applies to all employers in the state regardless of size.

2. The ADEA prohibits age discrimination at any stage of employment.

Age discrimination occurs when an employer predicates an adverse employment action a worker’s age or when an employment practice adversely impacts a mature worker. It is illegal for employers to engage those types discriminatory practices at any stage of employment including hiring, firing, promotions and retirement.

3. Age requirements in job posting are illegal.

The ADEA prohibits the use of age limits in job advertisements as well. So phrases like seeking a candidate 35 years old or younger are illegal.

Some employers attempt to get around this prohibition by specifying experience requirements in their postings such as recent college graduate with 2 years wanted. However, there are current court cases challenging the validity of experience requirements as violations of the ADEA too.

4. In rare instances, occupational age limits are legal.

Federal law allows limited exceptions to the prohibition on age limits in job advertisements. A job notice may specify an age limit only when age is shown to be a “bona fide occupational qualification” reasonably necessary for normal business operations. This exception is rare and only applies to a few types of positions.

5. To prove age discrimination, a worker’s age must be the “but for” cause.

To win an age discrimination claim in court, an employee must show that his age was the “but for” cause of his employer’s adverse employment action. A “but for” cause doesn’t mean that age discrimination was the only reason for the employer’s action as there can be more than one. However, the “but for” standard requires that a worker show that age was the reason that made a difference when it came to the employer’s actions against him, i.e. the worker wouldn’t have been fired but for their age.

Recently, Livelihood Law successfully prevailed on this very issue for one of our well-deserving clients. The employer claimed that it terminated our client because of his unsatisfactory performance. However, we were able to demonstrate that the employer’s “unsatisfactory performance” claim was just an excuse that the employer was using to justify its actions and that age discrimination was the real reason for our client’s termination. Read more about that case here.

If you have questions about age discrimination and your employer’s actions, Livelihood Law is here to help. Our experienced employment attorneys are happy to talk with you about your concerns. Contact us here today.

A Beginner’s Guide to Protecting Yourself Against Disability Discrimination

If you are one of the nearly 40 million Americans with a disability, you may be concerned that disability discrimination will keep you from pursuing or advancing in your chosen career. Fortunately, there are federal and state laws in place to ensure that individuals with disabilities have the same rights to a successful career as every other citizen.

The Americans With Disabilities Act (ADA) and the Colorado Anti-Discrimination Act (CADA) prohibit discrimination against employees because of a real or perceived disability. These rules are designed to make sure that individuals with disabilities are treated fairly throughout the employment process.

If you are a person with a disability or you have a loved one in this situation, it’s important to know your rights at work. So let’s discuss some of the basics about protecting yourself against disability discrimination in the workplace.

How Do I Know If I Have A Disability Under The Law?

The ADA and CADA defines disabilities as a physical or mental impairment that substantially limits one or more major life activities. These major life activities include:

  • caring for yourself;
  • walking, sitting, standing or lifting;
  • seeing, speaking or hearing;
  • breathing,
  • learning, thinking or concentrating; and
  • interacting with others.

If you have a disability you are protected under CADA and/or the ADA.

What is Disability Discrimination?

Disability discrimination occurs when an employer treats a disabled job applicant or employee less favorably because of a real or perceived disability. This unfavorable treatment may occur at any stage of the employment relationship including hiring, firing, promotions, training, job assignments, accommodations, pay and benefits. Employers may also be liable for disability discrimination if they ask prohibited health-related questions during an interview, refuse an employee’s request for a reasonable accommodation or employees face harassment because of their disability.

What Is A Reasonable Accommodation?

A reasonable accommodation is any change in the work environment or business practices designed to help a person with a disability apply for a job, perform the duties of a position or enjoy the benefits and privilege of employment. Some common forms of accommodation include making the workplace wheelchair accessible or providing assistance to someone who is blind or hearing impaired.

Employers do not have to provide the exact accommodation an employee or job applicant requests if more than one modification is available. Business owners also do not have to provide for accommodations that would be too difficult or expensive to implement. However, employers must provide accommodations that are reasonable in light of the circumstances.

What Employers Are Covered?

Businesses that employ at least 15 workers must follow the provisions of the ADA regardless of whether they are public or private institutions. CADA applies to employers of any size.

What Can You Do To Protect Yourself?

If you believe that you may be the victim of disability discrimination, it’s essential that you act fast to protect your rights.

Livelihood Law is here to help. Contact us today so that we can assist you in evaluating your situation.

Answers to the Most Frequently Asked Questions About the FMLA

The United States is one of two countries around the world that does not provide paid leave for new mothers (The other country being Papua New Guinea). Since the U.S. does not mandate maternity-related paid leave, new mothers often worry that they’ll lose their jobs, if they take time off work to deliver and care for their newborns. Other employees face similar concerns, when taking leave for their own medical needs or to care for ailing family members. But for these employees, there are some legal protections in place—including the Family Medical Leave Act (“FMLA”). However, many workers still do not know how FMLA can assist them. So let’s review some basics about the law and your rights.

What is FMLA?

Enacted in 1993, the Family Medical Leave Act is a federal law that allows certain public and private sector employees to take reasonable unpaid leave without the fear of losing their jobs. Under the law, an employer must continue to provide a worker with employee benefits during their leave period, and the employer must give the employee back their job (or an equivalent position and pay) upon their return to work.

Which Employers Have To Follow The FMLA?

It is important to note that FMLA does not apply to all employers. To be considered covered under the law, the employer must fall into one of the following categories:

  • A privately held company that has had 50 or more than employees for at least 20 workweeks in the preceding calendar year
  • A public government agency (regardless of size)
  • A public elementary or secondary school (regardless of the number of employees)

Who Is Eligible?

With a few exceptions, an employee is generally eligible for FMLA benefits if all of the below apply. The employee must…

  • Work for a covered employer
  • Work in a location where the employer has at least 50 employees within a 75-mile radius.
  • Have worked for this employer for at least 12 months
  • Have worked at least 1,250 hours in the preceding 12-month period

What Situations Qualify For FMLA Leave?

The law requires that employers grant an employee FMLA leave for specified reasons:

  • The addition of a child through birth, adoption or foster care;
  • The serious health condition of a parent, child, spouse, registered domestic partnership or self;
  • The active duty leave of a child, spouse or parent who is a member of the Armed Forces; or
  • Caretaking for a service member with a serious injury or illness, when the service member is a spouse, child, parent or next of kin.

How Much Time Does FMLA Cover?

Federal FMLA law guarantees eligible employees up to 12 workweeks of unpaid leave during any 12-month period. Workers can take FMLA leave all at once, or intermittently, depending on the circumstances.

To care for military service members with serious injuries or illness, FMLA allows for up to 26 workweeks of leave and up to 90 days of leave after the termination of active duty status.

What If You Have Questions?

If you are unsure if you’re entitled to FMLA protection at your job, or if you’ve lost a job, potentially in violation of FMLA, Livelihood Law is here to help. Contact us today, so we can assist you in evaluating your options.