Not long before the COVID-19 pandemic occupied employers’ time and attention, the Colorado Department of Labor and Employment began issuing interpretive notices and formal opinions — INFOs — providing guidance on employment laws and regulations.

 INFOs offer the most detailed guidance issued by the CDLE in recent memory. Employers who don’t review these notices are missing a lot of information on the laws and regulations the CDLE enforces.

INFOs aren’t binding law, but provide approved opinions and notices to employers, employees and other stakeholders as to how the department interprets and applies various statutes and rules. While Colorado courts aren’t bound to follow INFOs, they’ll afford these opinions deference in legal proceedings. You can find all of the INFOs online at https://cdle.colorado.gov/infos.

In just the last few months, new INFOs have addressed issues with which employers have wrestled. Here’s a look at three.

The payment of earned but unused vacation upon termination (INFO 14): The Colorado Supreme Court ruled in Nieto v. Clark’s Market that vacation policies allowing the forfeiture of unused vacation time are illegal. Consequently, “use it or lose it” vacation policies are no longer allowed, and employers must pay all accrued but unused vacation when an employee separates employment. In wage protection rule 2.17, the CDLE extended this requirement to paid time off and any “pay for leave, regardless of its label, that is usable at the employee’s discretion.”  

What about other types of leave? INFO 14 explains that “personal days” available for any occasion are considered vacation time. But personal days employees can use for only specified personal needs — holidays when the company is open, health or family needs or bereavement isn’t vacation time and need not be paid upon separation.

Further, the CDLE clarified that employers offering unlimited PTO or vacation plans ordinarily don’t need to pay out leave upon separation because time off never becomes determinable. But a plan limiting how much leave can be used is not really unlimited because the amount can be determined.   

The Colorado Labor Peace Act (INFO 15): Most private employers are covered by the National Labor Relations Act. The Labor Peace act extends labor relations rights to some employers not covered by the NLRA, including agricultural workers and mass transportation systems. In addition, the Colorado Partnership for Quality Jobs and Services Act created a collective bargaining process for the State of Colorado and its covered employees.  

INFO 15 discusses the rights of these workers to whom Colorado law extends protections and outlines the procedures covered employers should follow for union elections and labor practices.

Payroll deductions (INFO 16): The Colorado Wage Act prohibits deductions from wages except in narrowly prescribed situations. INFO 16 discusses situations employers commonly face. First, the INFO prohibits skirting deduction restrictions by passing the cost of doing business to employees. This prohibition includes “[e]xpenses considered to be for an employer’s benefit or convenience include tools or other items an employee needs to perform the work, other things the employee is authorized by the employer to purchase for work, property damage and bills not paid by customers or clients.”  Nor may employers require employees to pay for or provide any required uniform or special apparel, require deposits from employees or deduct for ordinary wear and tear.

Second, the INFO clarifies that an employer may deduct for the value of money or property it entrusts to an employee the employee doesn’t return. As with most deductions, the employee must authorize the deduction in writing. But the employee may deduct only the fair market value of the entrusted property. 

In the CDLE’s example, an employee didn’t return keys to the business. The employer deducted from final pay the cost of the locksmith’s service call to rekey the locks and provide a new set of keys. This deduction is impermissible because the employer only entrusted the original keys to the employer. Thus, the employer can deduct only the cost of the replacement keys.

Finally, the CDLE clarified how employers should treat wage overpayments. The employer should notify the employee in writing it will make deductions to recoup the overpayment, including the amount and manner in which it will be deducted; take the deduction from future pay periods, not from the pay period in which it provides notice; and the employee agrees to the deduction. But INFO 16 provides the employee may agree expressly to the deduction in writing or by continuing to work in the deduction pay period. 

While it appears the deductions might reduce pay below the minimum wage in violation of the Colorado Wage Act, the CDLE explained that because additional wages have already been paid, the employee’s compensation, with the overpayment made in advance of the deduction pay period, isn’t below the minimum wage.

Future topics for INFOs are up to Colorado employers.  If you have a topic related to laws and regulations administered by the CDLE, email the CDLE Division of Labor Standards and Statistics at cdle_labor_standards@state.co.us. Consulting and enterprise members of the Employers Council may call the council to discuss applying INFOs to workplace scenarios.