While other employment/human resources laws certainly dominate the headlines (e.g., union bills, DEI Orders, etc.), it’s generally wage-and-hour issues where Colorado employers must be constantly diligent to ensure compliance or face near-certain claims from employees, administrative agencies or through litigations.

So, you may ask, what wage-and-hour issues are those? Well, here’s just a few:

Make sure you comply with Colorado’s new wage requirements and correctly classify employees regarding entitlement to overtime.

To classify an employee as exempt under Colorado law (i.e., not required to keep track of the employee’s time or to ensure the employee receives overtime pay), the organization must show that the employee (a) receives, at least, the minimum salary basis amount (currently $56,485 for private employers in Colorado) and (b) meets one of the duty-basis tests (e.g., administrative, executive/supervisor or professional). An employer that only meets one of the tests is not complying with the law and could face claims of unpaid overtime.

Make sure employees aren’t working off the clock. If an hourly employee is working, the hourly employee must be “clocked in.” No ifs, ands or buts.

Where some employers run afoul of this requirement concerns supervisors communicating with employees after hours.

Take, for example, Supervisor Stan. He’s sitting around the house one night watching the Colorado Avalanche dominate another opponent, when he suddenly thinks, “Hmm, I wonder what ever happened today with Employee Ed’s meeting with our biggest client.” So, Stan decides to text Ed, and the two engage in a 20-minute discussion regarding the meeting. Because Ed is working, Ed must be punched in to ensure that he is compensated for this time.

So, companies should instruct their supervisors not to contact employees after hours or when the employee is off the clock.

Make sure every hourly employee is authorized and permitted to take at least a 10-minute rest period every four hours.

Colorado law (i.e., the Colorado Overtime and Minimum Pay Standards) requires that every hourly employee is “authorized and permitted” to receive that break time. While many believe that COMPS requires the employee to “take” the rest break, that requirement is not actually in the order. Instead, the order requires employers to “authorize and permit” a required 10-minute rest period. So, how does an employer “authorize and permit” a rest break. 

Well, here are a few ideas:

• Have language in the handbook that stresses every non-exempt employee is “authorized and permitted” to take the identified rest breaks.
• Put the language in the handbook sign-off sheet and have the employee initial it and sign the sign-off sheet that non-exempt employees are authorized and permitted to take the required rest breaks.
• Have all non-exempt employees sign the COMPS order.
• Have supervisors end employee meetings by saying, “Don’t forget you are authorized and permitted to take a 10-minute rest break every four hours. If you don’t think you’re authorized and permitted to take one, come see me.”
• Get company coffee mugs that say, “All non-exempt employees are authorized and permitted to take a 10-minute rest period every four hours.”

Use-it-or-lose-it vacation policies are not lawful.

Within the last few years, the Colorado Supreme Court issued an opinion wherein it determined that policies that “took away” an employee’s vacation time or failed to pay an employee their accrued vacation upon termination were unlawful. In short, once an employee earns vacation, it is theirs to keep, use or receive compensation for.

An example of a policy that violates this law would be where the organization identifies, “Employees are only permitted to carry over 80 hours into the next calendar year. So, if an employee has more than this amount at the end of the year, the company will take away leave to get the employee under that 80-hour cap.” This would violate the law because it’s taking away an employee’s leave without paying the employee for it.

Now, an employer could develop a policy where employees may not accrue more than, for example, 80 hours and when the employee reaches this cap, the employee stops accruing. This policy, unlike the previous one, is lawful, because the employer isn’t taking away any leave. Instead, the employer is simply stopping the employee from accruing additional leave beyond the cap.

As mentioned above, while other laws may draw a lot of the big headlines, it’s the day-to-day wage-and-hour requirements that companies need to be constantly diligent to comply with.

Michael Santo is co-founder and managing attorney of the Bechtel & Santo law firm in Grand Junction. His practice focuses on defending companies in employment litigation, including discrimination lawsuits, wrongful discharge and wage-and-hour matters. He also represents employers in claims of trade-secret misappropriation, unfair competition and employee raiding. Santo is a member of the Western Colorado Human Resource Association. Visit www.wchra.org.