Most employees make two general assumptions about their workplace rights. First, that employees do not have any rights because we live in an at-will state. Second, that their employer knows the law and is paying them correctly. Because of these assumptions, many employees do not even know when or if their rights are being violated.
Employees typically seek legal counsel for advice regarding unfair treatment in the workplace, usually involving a termination, demotion, hostile work environment or some other adverse employment action that the employee feels is unfair.
Colorado is an at-will employment state, meaning that an employer may fire an employee for a good reason, a bad reason or no reason at all. However, state and federal laws create exceptions to the underlying employment at-will rule, in particular, Title VII of the 1964 Civil Rights Act and the Colorado Anti-Discrimination Act.
These laws are crucial to protecting workers’ rights and preventing public and private employers from discriminating against employees because they are a member of a protected class (race, color, religion, creed, sex, pregnancy, national origin, ancestry, age, physical or mental disability, sexual orientation, marriage to a coworker or engaging in a protected activity).
However, during our conversations with employees, we have found that wage and hour law violations are much more pervasive than violations of the anti-discrimination laws. Most employees do not even realize that they may have a wage claim.
We like to believe that a majority of employers do not intentionally violate state and federal wage and hour laws. Rather, because of the complexity of this area of the law, the mistakes are probably the result of an oversight or a misunderstanding of the current state of the law. The primary laws that provide employees with rights regarding their wages and hours are the federal Fair Labor Standards Act and the Colorado Wage Claim Act.
Fair Labor Standards Act
The FLSA was passed in 1938, and its intent was to quell the ongoing labor disputes across the country. In order to accomplish this goal, the law initially focused on two areas of ongoing dispute: a maximum work week (40 hours) and a federal minimum wage. The FLSA is complex and cannot be summarized simply, but in general it is where we look to enforce the minimum wage, overtime pay for non-exempt employees who work more than 40 hours in a week, equal pay and proper classification of employees (such as exempt versus non-exempt and employee versus independent contractor).
A common FLSA violation is the classification of employees as exempt versus non-exempt. Most people are familiar with these terms, but the analysis to determine whether an employee’s position is exempt or non-exempt can be complicated. Each individual employee’s situation should be evaluated under the law to be sure that they are classified properly.
Another important protection of the FLSA is in the area of tipped employees. Tipped employees do not have to be paid the regular minimum wage. In Colorado, tipped employees must be paid at least $6.28 per hour. However, tipped employees still must make at least a minimum wage for every hour they work, which is $9.30 per hour. If they do not make at least minimum wage with tips and hourly wages combined, the employer is responsible for making up the difference.
Additionally, if employers choose to pay employees the lower tipped minimum wage then they must also comply with all other laws regulating tipped employees or lose the tip credit and pay the non-tipped minimum wage. For example, if an employer pools tips and shares those tips with employees who customarily do not receive tips, then the employer must pay the regular minimum wage and reimburse all improperly distributed tips.
Colorado Wages Claim Act
The CWCA provides overlapping and additional protections to those afforded by the FLSA. In particular, the CWCA regulates deductions from wages, final pay which can include vacation pay, commissions and bonuses and when and how compensation must be paid. The CWCA provides additional remedies if an employer has not paid an employee properly. Like the FLSA, the CWCA contains many exceptions and employees’ rights under the law should be evaluated on a case-by-case basis.
Wage and hour laws are part of what has made America thrive. Employment affects us all. The more that employees know their rights in the workplace, the better employees will be treated and compensated. Better employment situations contribute to more stable families and communities. In La Plata County we are lucky to have many local businesses who pay living wages and organizations like Thrive!, a living wage coalition, who advocate for living wages. We encourage you to support our local businesses who make a point to pay their employees a living wage.
As an employee, you have rights. If you have questions about the issues in this article or any other employment-related matters, contact an employment law attorney to evaluate your situation.
David Albrechta, esq. is a partner in Albrechta & Albrechta, LLC. Reach him at david@albrechtalaw.com.
