LABOR I - DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Labor - Industrial Claim Appeals Office

Cross references: For the duty of the department of labor and employment with respect to the Colorado customized training program, see § 23-60-306.

ARTICLE 1 DIVISION OF LABOR - INDUSTRIAL CLAIM APPEALS OFFICE

Section

8-1-101. Definitions.

As used in this article, unless the context otherwise requires:

  1. "Commission" means the industrial commission of Colorado, as said commission existed prior to July 1, 1986.
  2. "Commissioner" means one of the members of the commission.

    (2.5) "Department" means the department of labor and employment.

  3. "Deputy" means any person employed by the division designated as such deputy by the director, and who may be engaged in the performance of duties under the direction of the director.
  4. "Director" means the director of the division of labor standards and statistics.
  5. "Division" means the division of labor standards and statistics in the department of labor and employment.
  6. "Employee" means every person in the service of an employer, under any contract of hire, express or implied, not including an elective official of the state, or of any county, city, town, irrigation, drainage, or school district thereof, and not including any officers or enlisted men of the National Guard of the state of Colorado.
    1. "Employer" means:
      1. The state, and each county, city, town, irrigation, and school district therein, and all public institutions and administrative boards thereof having four or more employees;
      2. Every person, association of persons, firm, and private corporation, including any public service corporation, manager, personal representative, assignee, trustee, and receiver, who has four or more persons regularly engaged in the same business or employment, except as otherwise expressly provided in this article, in service under any contract of hire, expressed or implied.
    2. This article is not intended to apply to employers of private domestic servants or farm and ranch labor; nor to employers who employ less than four employees regularly in the same business, or in or about the same place of employment.
  8. "Employment" means any trade, occupation, job, position, or process of manufacture or any method of carrying on any such trade, occupation, job, position, or process of manufacture in which any person is engaged, except as otherwise expressly provided in this article.

    (8.5) "Executive director" means the executive director of the department of labor and employment.

  9. "General order" means an order of the director applying generally throughout the state to all persons, employments, or places of employment under the jurisdiction of the division. All other orders of the director shall be considered special orders.
  10. "Local order" means any ordinance, order, rule, or determination of any common council, board of aldermen, board of supervisors, board of trustees, or board of commissioners of any county, town, city, or city and county operating under any general or special law of this state or of the board of health of the state or any municipality therein or any order or direction of any official of the state or municipality therein.
  11. "Order" means any decision, rule, regulation, requirement, or standard promulgated by the director.
  12. "Place of employment" means every place, whether indoors or outdoors or underground, and the premises, work places, works, and plants appertaining thereto or used in connection therewith where either temporarily or permanently any industry, trade, or business is carried on, or where any process or operation directly or indirectly relating to any industry, trade, or business is carried on, or where any person is directly or indirectly employed by another for direct or indirect gain or profit, except as otherwise expressly provided in this article.
  13. "Safe" or "safety", as applied to an employment or place of employment, means such freedom from danger to the life, health, and safety of employees and such reasonable means of notification, egress, and escape in case of catastrophe as the nature of the employment reasonably permits.
  14. "State personnel system" means the personnel system of the state as described in section 13 of article XII of the state constitution and the state personnel system as described in article 50 of title 24, C.R.S.

Source: L. 15: pp. 562, 563, §§ 1, 2, 4. L. 21: p. 828, § 2. C.L. §§ 4325, 4326, 4328. CSA: C. 97, §§ 1, 2, 4. CRS 53: §§ 80-1-1 to 80-1-3. C.R.S. 1963: §§ 80-1-1 to 80-1-3. L. 69: p. 573, §§ 18-20. L. 72: p. 601, §§ 94-96. L. 86: (1) and (11) amended and (2.5) and (8.5) added, p. 464, § 3, effective July 1. L. 2008: (14) added, p. 292, § 1, effective April 3. L. 2016: (4) and (5) amended, (HB 16-1323), ch. 131, p. 375, § 1, effective August 10.

ANNOTATION

Law reviews. For article, "The Colorado Industrial Commission and Wage Disputes", see 9 Dicta 44 (1931). For article, "Governmental Adjustment of Colorado's Industrial Disputes 1915-1930", see 3 Rocky Mt. L. Rev. 223 (1931). For note, "Use of Evidence in Hearings Before Colorado Administrative Agencies", see 29 Dicta 437 (1952).

The act establishing this article was not irregularly passed because the purpose of the bill was changed during its course through the two houses. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921).

One who goes from farm to farm operating a thresher is not a farm laborer within the exception contained in subsection (7)(c) of this section. Indus. Comm'n v. Shadowen, 68 Colo. 69, 187 P. 926 (1920).

By its definitions, the Industrial Relations Act grants the right to strike to all employees, private and public, and concurrently places conditions on the exercise of that right. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Reading the Industrial Relations Act with the express definitions of employer and employee in mind, it can be concluded that public employees have a qualified or conditional right to strike, as do private employees. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Disputes in the public sector, particularly those leading to strikes, are subject to the authority of the director of the division of labor. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Teaching in a public school is certainly an "occupation" or "position" within the meaning of the Industrial Relations Act. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

As school districts are expressly included in the definition of employer, the director has the power to supervise the employment relationship between school districts and their teachers. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

In view of the general assembly's demonstrated ability to be selective by expressly excluding certain employers from the provisions of the Industrial Relations Act, the court cannot exclude public employers from the substantive provisions of the Industrial Relations Act, especially when those public employers are expressly included. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Arguments advanced by the school district against the right of public employees to strike that invoke concepts of sovereignty and the control of the public purse and that are predicated on the classical distinction between the private and public sectors, are better directed to the general assembly since the plain definitions in the Industrial Relations Act include public employers and their employees. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

The principle of statutory construction that statutes in derogation of the common law must be narrowly construed is a principle applicable only when an ambiguity in the language of the statute in question permits such narrowing construction and when the intent of the legislature is not to the contrary and cannot be invoked to defeat the plain and manifest language of the Industrial Relations Act. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

The Industrial Relations Act and the Labor Peace Act do not conflict and the court will not infer from the passage of another act regulating collective bargaining in the private sector that the legislature intended to repeal the express provisions of the Industrial Relations Act and to return public sector labor relations to adjudication by the common law. Martin Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Because the Industrial Relations Act provides the regulatory framework for the resolution of public sector labor disputes and ample statutory remedies, the common law need not be searched for remedies to resolve those disputes or claims arising from those disputes. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

8-1-102. Industrial claim appeals office - creation - powers and duties.

  1. There is created in the office of the executive director of the department of labor and employment the industrial claim appeals office, which consists of five industrial claim appeals examiners who are appointed to serve on the industrial claim appeals panel by the executive director pursuant to section 13 of article XII of the state constitution and the laws and rules governing the state personnel system. The industrial claim appeals office is a type 2 entity, as defined in section 24-1-105, and exercises its powers and performs its duties and functions under the office of the executive director of the department. Decisions and orders of the industrial claim appeals panel may be made by two appeals examiners. In the event of a disagreement between the two appeals examiners, a third appeals examiner shall review the case, and the decision and final order of the appeals panel shall reflect the collective decision of all three appeals examiners.
  2. The industrial claim appeals panel has the duty and the power to conduct administrative appellate review of any order entered pursuant to articles 43 and 74 of this title and to make a decision on said appeal.

Source: L. 15: p. 564, § 5. C.L. § 4329. CSA: C. 97, § 5. CRS 53: § 80-1-4. C.R.S. 1963: § 80-1-4. L. 69: p. 574, § 21. L. 83: (1) amended, p. 401, § 1, effective July 1. L. 84: (1) amended, p. 298, § 1, effective July 1. L. 86: Entire section R&RE, p. 463, § 3, effective July 1. L. 89: (1) amended, p. 371, § 1, effective July 1. L. 91: (2) amended, p. 1291, § 1, effective July 1. L. 92: (1) amended, p. 1811, § 1, effective March 19. L. 2022: (1) amended, (SB 22-162), ch. 469, p. 3382, § 83, effective August 10.

Cross references: (1) For the powers, duties, and functions of the industrial claim appeals office, see articles 43 and 74 of this title 8.

(2) For the short title (the "Debbie Haskins 'Administrative Organization Act of 1968' Modernization Act") in SB 22-162, see section 1 of chapter 469, Session Laws of Colorado 2022.

ANNOTATION

The increase in the number of panel members made by the 1989 amendment was not intended to result in a modification of the procedure for reviewing workers' compensation cases. Orders signed by two members are authorized and valid. O'Gorman v. Indus. Claim Appeals Office, 826 P.2d 390 (Colo. App. 1991).

Requiring three members to address each case would frustrate the purposes of the 1989 amendment, which were to address the heavy load of cases and the delay in resolving them. O'Gorman v. Indus. Claim Appeals Office, 826 P.2d 390 (Colo. App. 1991).

Industrial Claim Appeals Office is a public body within the meaning of § 2-4-110 and for decisions rendered prior to March 19, 1992, is subject to the limitation of § 2-4-110 to act through a majority of its members. O'Gorman v. Indus. Claim Appeals Office, 839 P.2d 1149 (Colo. 1992).

Where Industrial Claim Appeals Panel rendered decision within statutory time limit and in good faith belief that it had authority to act, but court determines that decision rendered by the panel was ineffective because taken by only two members when a majority was required, proper course is to remand case to the panel for reconsideration. (Decided under § 8-1-102 as it existed prior to 1992 amendment.) O'Gorman v. Indus. Claim Appeals Office, 839 P.2d 1149 (Colo. 1992).

This section does not require or authorize the panel to entertain an untimely appeal. The procedure for perfecting an appeal to the panel is set forth exclusively in § 8-43-301 (2). Brodeur v. Indus. Claim Appeals Office, 159 P.3d 810 (Colo. App. 2007).

8-1-103. Division of labor standards and statistics - director - employees - qualifications - compensation - expenses.

  1. There is hereby created a division of labor standards and statistics in the department of labor and employment. Pursuant to section 13 of article XII of the state constitution, the executive director of the department of labor and employment shall appoint the director of the division, and the director shall appoint such deputies, experts, statisticians, accountants, inspectors, clerks, and other employees as are necessary to carry out the provisions of law and to perform the duties and exercise the powers conferred by law upon the division and the director. The director shall be the chief administrative officer of the division with such powers, duties, and functions as prescribed by law.
  2. All employees, except experts, shall have been for one year prior to such employment or appointment bona fide residents of this state and, while in the employ of the division, shall receive such compensation as is fixed by the state personnel system laws of this state, such compensation to be paid monthly from funds appropriated for the use of the division. All expenses incurred by the division and its employees pursuant to the provisions of law shall be paid from funds appropriated for its use upon the approval of the director. The traveling expenses of the director or of any employee of the division incurred while on business of the division outside this state shall be paid in the manner prescribed in this subsection (2), but only when such expenses are authorized in advance.
  3. The director exercises the director's powers and performs the director's duties and functions as prescribed under this article 1, including rule-making, licensing, promulgation of rules, rates, and standards, and the rendering of findings, orders, and adjudications, under the direction and supervision of the executive director of the department of labor and employment. The director is a type 2 entity, as defined in section 24-1-105.

Source: L. 15: p. 566, § 6. L. 21: p. 830, § 3. C.L. § 4330. CSA: C. 97, § 6. CRS 53: § 80-1-5. C.R.S. 1963: § 80-1-5. L. 69: p. 574, § 22. L. 71: p. 106, § 18. L. 83: (3) added, p. 403, § 1, effective May 25. L. 2016: (1) amended, (HB 16-1323), ch. 131, p. 375, § 2, effective August 10. L. 2022: (3) amended, (SB 22-162), ch. 469, p. 3383, § 84, effective August 10.

Cross references: For the short title (the "Debbie Haskins 'Administrative Organization Act of 1968' Modernization Act") in SB 22-162, see section 1 of chapter 469, Session Laws of Colorado 2022.

ANNOTATION

The exercise of jurisdiction by the director of the division of labor, or the decision not to exercise jurisdiction, is itself subject to the restraints of the electoral process since the director is subject to the oversight of the executive director of the Department of Labor and Employment and the executive director is in turn politically accountable, serving at the pleasure of the governor. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Applied in Matthews v. Indus. Comm'n, 44 Colo. App. 159, 609 P.2d 1127 (1980).

8-1-104. Director - seal.

  1. Repealed.
  2. The director shall have a seal upon which shall be inscribed the words "Director - Division of Labor Standards and Statistics - Department of Labor and Employment - Colorado - Seal". The director's seal shall be affixed to all orders, awards, and copies thereof of the division and to such other instruments as the director shall direct.
  3. All courts of the state shall take judicial notice of said seal. Any copy of an order, award, or record of the director under his seal shall be received in all courts as evidence as if such copy were the original thereof.

Source: L. 15: p. 567, § 7. C.L. § 4331. CSA: C. 97, § 7. CRS 53: § 80-1-6. C.R.S. 1963: § 80-1-6. L. 69: p. 575, § 23. L. 86: (1) repealed and (3) amended, pp. 502, 464, §§ 125, 5, effective July 1. L. 2016: (2) amended, (HB 16-1323), ch. 131, p. 376, § 3, effective August 10.

8-1-105. Offices and supplies.

The division shall have offices in the city and county of Denver and at such other places in the state as the executive director of the department may direct. The division shall be provided with suitable office space by the office of state planning and budgeting. The division is authorized to procure all necessary office furniture, stationery, books, periodicals, maps, instruments, apparatus, appliances, and other supplies and incur such other expenses as necessary, and the same shall be paid for in the same manner as other expenses authorized by law. The director or any deputy or referee of the division may hold sessions at any place other than the city and county of Denver when the convenience of the director, deputy, referee, or parties interested requires.

Source: L. 15: p. 567, § 8. C.L. § 4332. CSA: C. 97, § 8. CRS 53: § 80-1-7. C.R.S. 1963: § 80-1-7. L. 69: p. 575, § 24. L. 75: Entire section amended, p. 818, § 5, effective July 18. L. 86: Entire section amended, p. 464, § 6, effective July 1.

8-1-106. Records - sessions.

  1. Repealed.
  2. The division shall keep a full and accurate record of all proceedings of the division and issue all necessary processes, writs, warrants, orders, awards, and notices as the director or any deputy or referee may require. The director shall supervise the collection of data and information concerning matters within the jurisdiction of the division and shall make such reports thereon as the executive director of the department of labor and employment may require.
  3. The sessions of the director or any deputy or referee of the division shall be open to the public and shall stand and be adjourned without further notice thereof on the record. All proceedings of the division shall be shown on its records, which shall be public records.

Source: L. 15: p. 567, § 9. C.L. § 4333. CSA: C. 97, § 9. CRS 53: § 80-1-8. C.R.S. 1963: § 80-1-8. L. 69: p. 575, § 25. L. 86: (3) amended and (1) repealed, pp. 464, 502, §§ 7, 125, effective July 1.

8-1-107. Powers and duties of director - rules.

  1. Repealed.
  2. In addition to any other duties prescribed by law, the director has the duty and the power to:
    1. Appoint advisors who, without compensation, shall advise the director relative to the duties imposed upon the director by articles 1 to 18 of this title and part 3 of article 34 of title 24, C.R.S.;
    2. Inquire into and supervise the enforcement, with respect to relations between employer and employee, of the laws relating to child labor, laundries, stores, factory inspection, employment offices and bureaus, and fire escapes and means of egress from places of employment and all other laws protecting the life, health, and safety of employees in employments and places of employment;
    3. Repealed.
    4. Repealed.
    5. Repealed.
    6. Repealed.
    7. Repealed.
    8. Repealed.
    9. Accept, use, disburse, and administer all federal aid or other property, services, and moneys allotted to the division as part of any grant-in-aid safety program authorized by an act of congress and to make such agreements, not inconsistent with any act of congress and the laws of this state, as may be required as a condition precedent to receiving such funds or other assistance. Such acceptance, conditions, and agreement shall not be effective unless and until the director has recommended to and received the written approval of the governor and the executive director of the department. The state treasurer is designated custodian of all funds received pursuant to this paragraph (i) from the federal government, and he shall hold such funds separate and distinct from state funds and is authorized to make disbursements from such funds for the designated purpose or administrative costs which may be provided in such grants-in-aid, upon warrants issued by the controller and upon the voucher of the director.
    10. Repealed.
    11. Collect and collate statistical and other information relating to the work under his jurisdiction. All materials of the division circulated in quantity outside the executive branch shall be issued in accordance with the provisions of section 24-1-136, C.R.S. The director shall cause to be printed and, upon application, furnished free of charge to any employer or employee such blank forms as he shall deem required for the proper and efficient administration of articles 1 to 18 of this title and part 3 of article 34 of title 24, C.R.S., all such records to be kept in the offices of the division. Copies of orders, regulations, and rules of procedure shall be made for distribution in a manner to constitute sufficient publication as required by law.
    12. Repealed.
    13. Repealed.
    14. Repealed.
    15. Repealed.
    16. Adopt reasonable and proper rules and regulations relative to the exercise of his powers and proper rules and regulations to govern the proceedings of the division and to regulate the manner of investigations and hearings and to amend said rules and regulations from time to time in his discretion. Such rules and regulations, and amendments thereto, shall be made in accordance with section 24-4-103, C.R.S.
    17. Repealed.
    18. Promulgate rules to implement the provisions of section 26-2-716 (3)(b), C.R.S.

Source: L. 15: p. 568, § 11. L. 21: p. 831, § 4. C.L. § 4335. CSA: C. 97, § 11. CRS 53: § 80-1-9. L. 56: p. 158, § 1. C.R.S. 1963: § 80-1-9. L. 64: p. 147, § 80. L. 69: p. 576, § 26. L. 73: p. 917, § 2. L. 75: (1)(f), (2)(c), (2)(d), and (2)(l) amended, (1)(g) and (2)(m) added, and (1)(b), (1)(c), and (1)(d) repealed, pp. 274, 286, §§ 1, 2, 22, effective July 25. L. 77: (2)(a) and (2)(k) amended, p. 414, § 1, effective June 1; (2)(n) added, p. 418, § 1, effective June 1; (2)(b) amended, p. 416, § 1, effective June 9; (2)(b) amended, p. 428, § 1, effective July 1. L. 80: (2)(d) amended and (2)(c), (2)(e), (2)(l), and (2)(m) repealed, pp. 449, 451, §§ 1, 6, effective April 13. L. 81: (1)(d) R&RE, p. 457, § 1, effective March 27; (1)(h) added, p. 509, § 1, effective July 1. L. 83: (2)(a) and (2)(k) amended, p. 700, § 2, effective June 10; (2)(j) and (2)(k) amended, p. 825, § 2, effective July 1. L. 84: (2)(f) and (2)(g) repealed, p. 1116, § 2, effective June 7. L. 85: (1)(g) amended, p. 337, § 2, effective July 1. L. 86: (2)(a), (2)(d), (2)(i), and (2)(k) amended and (2)(o) and (2)(p) added, p. 465, § 8, effective July 1; (1) repealed, p. 502, § 125, effective July 1. L. 91: (2)(h) repealed, p. 1291, § 2, effective July 1. L. 95: (2)(q) added, p. 418, § 3, effective July 1. L. 97: (2)(j) repealed, p.1473, § 5, effective June 3; (2)(r) added, p. 1239, § 34, effective July 1. L. 2001: (2)(d), (2)(n), (2)(o), and (2)(q) repealed, p. 1139, § 67, effective June 5.

ANNOTATION

Law reviews. For comment on the administrative review of workmen's compensation claims, see 45 U. Colo. L. Rev. 195 (1973).

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred its powers, duties, and functions under this section to the division of labor.

The industrial commission has no power to appoint to an office that does not exist, nor to draw upon the employment agency fund to pay an appointee thereto. Stong v. Milliken, 76 Colo. 515, 233 P. 154 (1925).

There are no provisions under article I of the industrial commission act under which one can obtain damages from an employer. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

Commission not stripped of authority to hold hearings and make findings. The general assembly did not intend to strip the commission of its general authority to hold hearings and make findings of fact, although such language was deleted from § 8-53-106 (2) by amendment in 1973. There are numerous other references within the workmen's compensation act to the commission's general authority to hold hearings and make factual findings. Harrison W. Corp. v. Hicks' Claimants, 185 Colo. 142, 522 P.2d 722 (1974).

The authority of the director in subsection (2)(d) to "enforce the provisions of §§ 22-32-124 and 23-71-122" relating to building inspections is not exclusive but may also be taken by a fire protection district absent the school district or junior college district's exercise of authority to contract with a qualified fire inspector. West Adams County Fire v. Adams County Sch. Dist. 12, 926 P.2d 172 (Colo. App. 1996).

Applied in Matthews v. Indus. Comm'n, 44 Colo. App. 159, 609 P.2d 1127 (1980).

8-1-108. Orders effective - when - validity presumed.

  1. All general orders shall be effective ten days after they are adopted by the director and posted upon the bulletin board of the division in its offices in the city and county of Denver. Special orders shall take effect as therein directed.
  2. The director, upon application of any person, may grant such time as may be reasonably necessary for compliance with any order. Any person may petition the director for an extension of time, which the director shall grant if he finds such an extension of time necessary.
  3. All orders of the division shall be valid and in force and prima facie reasonable and lawful until they are found otherwise in an action brought for that purpose, pursuant to the provisions of this article, or until altered or revoked by the director.
  4. Substantial compliance with the requirements of this article shall be sufficient to give effect to the orders or awards of the director, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature with respect thereto.

Source: L. 15: p. 570, § 12. L. 21: p. 834, § 5. C.L. § 4336. CSA: C. 97, § 12. CRS 53: § 80-1-10. C.R.S. 1963: § 80-1-10. L. 69: p. 577, § 27. L. 72: p. 602, § 97. L. 86: (1) and (3) amended, p. 1223, § 39, effective July 1; (4) amended, p. 466, § 9, effective July 1.

Cross references: For the nonapplicability of this section to the "Labor Peace Act", see § 8-3-123.

8-1-109. Employer to furnish safe place to work. (Repealed)

Source: L. 15: p. 570, § 13. C.L. § 4337. CSA: C. 97, § 13. CRS 53: § 80-1-11. C.R.S. 1963: § 80-1-11. L. 73: p. 919, § 3. L. 75: Entire section repealed, p. 286, § 22, effective July 25.

8-1-110. Unsafe places - investigation - report - order. (Repealed)

Source: L. 15: p. 571, § 14. C.L. § 4338. CSA: C. 97. CRS 53: § 80-1-12. C.R.S. 1963: , § 80-1-12. L. 69: p. 578, § 28. L. 72: p. 602, § 98. L. 73: p. 919, § 4. L. 75: Entire section repealed, p. 286, § 22, effective July 25.

8-1-111. Jurisdiction over employer and employee relation.

The director is vested with the power and jurisdiction to have such supervision of every employment and place of employment in this state as may be necessary adequately to ascertain and determine the conditions under which the employees labor, and the manner and extent of the obedience by the employer to all laws and all lawful orders requiring such employment and places of employment to be safe, and requiring the protection of the life, health, and safety of every employee in such employment or place of employment, and to enforce all provisions of law relating thereto. The director is also vested with power and jurisdiction to administer all provisions of this article with respect to the relations between employer and employee and to do all other acts and things convenient and necessary to accomplish the purposes of this article including entering into reciprocal agreements with other states and governmental entities.

Source: L. 15: p. 571, § 15. C.L. § 4339. CSA: C. 97, § 17. CRS 53: § 80-1-15. C.R.S. 1963: § 80-1-15. L. 69: p. 578, § 29. L. 72: p. 602, § 99. L. 93: Entire section amended, p. 867, § 1, effective May 6.

ANNOTATION

The Industrial Relations Act unequivocally vests the director with jurisdiction over "every employment". Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992); Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

8-1-112. Officers to assist in enforcing orders.

It is the duty of all officers and employees of the state, counties, and municipalities, upon request of the director, to enforce in their respective departments all lawful orders of the director, insofar as the same may be applicable and consistent with the general duties of such officers and employees. It is also their duty to make such reports as the director may require concerning matters within their knowledge pertaining to the purposes of this article and to furnish to the division such facts, data, statistics, and information as may from time to time come to them pertaining to the purposes of this article and the duties of the division thereunder, and particularly all information coming to their knowledge respecting the condition of all places of employment subject to the provisions of this article as regards the health, protection, and safety of employees and the conditions under which they labor. It is the duty of the division to collect and compile such data, facts, and information as shall come to it concerning the relations between employer and employee and relating in any way to the provisions of this article.

Source: L. 15: p. 571, § 16. C.L. § 4340. CSA: C. 97, § 18. CRS 53: § 80-1-16. C.R.S. 1963: § 80-1-16. L. 69: p. 578, § 30. L. 72: p. 603, § 100.

Cross references: For the duty of governmental officers and employees to enforce orders and furnish information pursuant to the "Workers' Compensation Act of Colorado", see § 8-47-110.

8-1-113. Agents of division and director - powers.

  1. For the purpose of making any investigation with regard to any employment or place of employment or other matter contemplated by the provisions of this article, the director, with the approval of the executive director of the department of labor and employment, has the power to appoint temporarily, by an order in writing, any deputy or any other competent person as an agent, whose duties shall be prescribed in such order.
  2. In the discharge of his duties such agent has every power whatsoever for obtaining information granted in this article to the director and the division, and all powers granted by law to officers authorized to take depositions are granted to such agent.
  3. The director may conduct any number of investigations contemporaneously through different agents and may delegate to such agents the taking of all testimony bearing upon any investigation or hearing. The decision of the director shall be based upon his examination of all testimony and records. The recommendations made by such agent shall be advisory only and shall not preclude any further investigation or the taking of further testimony if the director so orders.

Source: L. 15: p. 572, § 17. C.L. § 4341. CSA: C. 97, § 19. CRS 53: § 80-1-17. C.R.S. 1963: § 80-1-17. L. 69: p. 579, § 31. L. 72: p. 603, § 101.

8-1-114. Employers and employees to furnish information - penalty.

  1. Upon request, every employer and employee shall furnish the division all information required by it to accomplish the purposes of this article, which information shall be furnished on blanks to be prepared by the division. It is the duty of the division to furnish such blanks to the employer free of charge upon request therefor. Every employer receiving from the division any blanks, with directions to fill out same, shall answer fully and correctly all questions therein propounded and give all the information therein sought, or, if unable to do so, he shall give in writing good and sufficient reasons for the failure. The director may require that the information required to be furnished be verified under oath and returned to the division within the period fixed by him or by law. The director, or any person employed by the division for that purpose, has the right to examine, under oath, any employee or employer, or the officer, agent, or employee thereof, for the purpose of ascertaining any information which such employer or employee is required by this article to furnish to the division.
  2. Any employer or employee who fails or refuses to furnish information as may be required by the division under authority of this article 1 shall pay a penalty of not less than fifty dollars for each day that the failure or refusal continues. The division shall transmit any penalty imposed and collected pursuant to this section to the state treasurer, who shall credit the money to the wage theft enforcement fund created in section 8-4-113 (3).

Source: L. 15: p. 572, § 18. C.L. § 4342. CSA: C. 97, § 20. CRS 53: § 80-1-18. C.R.S. 1963: § 80-1-18. L. 69: p. 579, § 32. L. 72: p. 603, § 102. L. 2022: (2) amended, (SB 22-161), ch. 370, p. 2626, § 1, effective August 10.

8-1-115. Information not public - penalty for divulging.

    1. The information contained in the reports lawfully required to be furnished by the employer in section 8-1-114, other information furnished to the division by employers and employees in pursuance of this article 1, and information obtained through inspections or other proceedings under this article 1 that reveals a trade secret is for the exclusive use and information of the division in the discharge of its official duties. An employer may designate information submitted to the division as proprietary, a trade secret, or privileged information in accordance with section 24-72-204 (3), as long as the director is not bound by the employer's designation. The director may treat and file the information or any part of the information as confidential, and, when so treated or filed by the director, the information is confidential, for the sole use of the division, and not open to the public nor to be used in any court in any action or proceeding pending therein unless the division is a party to the action or proceeding. The court shall issue orders as appropriate to protect the confidentiality of trade secrets. The information contained in a report may be tabulated and published by the division in statistical form for the use and information of other state departments and the public.
    2. Notwithstanding subsection (1)(a) of this section, the division shall treat any notice of citation or notice of assessment issued to an employer for violation of a wage law, including a violation of section 8-4-111 (2)(c), after all remedies have been exhausted pursuant to section 8-4-111.5, as a public record and shall release the information to the public upon request pursuant to the "Colorado Open Records Act", part 2 of article 72 of title 24, unless the director makes a determination that the information is a trade secret. Before releasing any information relating to the violation of a wage law, the director shall notify the employer of the potential release of the information. The employer then has twenty days to provide the director with further documentation demonstrating that the information, or specific matters included in the information, is a trade secret. If the director, in the director's discretion, determines that the information, or any portion of the information, is a trade secret, the director shall treat the information as confidential under this subsection (1). For purposes of this subsection (1)(b), "trade secret" has the same meaning as set forth in section 7-74-102 (4).
  2. Any person in the employ of the division who divulges any confidential information to any person other than the director commits a civil infraction and shall thereafter be disqualified from holding any appointment or employment with any department under the state.
  3. Pursuant to this section, the director shall provide a physical environment and establish policies and procedures to ensure confidentiality for all information regarding any employer, employee, or person pertaining to any action pursuant to articles 1 to 13 of this title; except that such information may be released if there exists an overriding need for access to such information arising pursuant to articles 1 to 13 of this title in connection with:
    1. A dispute resolution, a mediation, or an administrative or judicial proceeding; or
    2. A cooperative effort with another subdivision of government.

Source: L. 15: p. 573, § 19. L. 21: p. 835, § 6. C.L. § 4343. CSA: C. 97, § 21. CRS 53: § 80-1-19. C.R.S. 1963: § 80-1-19. L. 69: p. 580, § 33. L. 72: p. 604, § 103. L. 73: p. 919, § 5. L. 75: (1) amended, p. 275, § 3, effective July 25. L. 80: (1) amended, p. 449, § 2, effective April 13. L. 86: (2) amended, p. 466, § 10, effective July 1. L. 93: (3) added, p. 867, § 2, effective May 6. L. 2017: (1) amended, (HB 17-1021), ch. 126, p. 433, § 1, effective April 13. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3136, § 71, effective March 1, 2022.

Cross references: For the "Uniform Trade Secrets Act", see article 74 of title 7.

8-1-116. Investigators to have access to premises - penalty.

  1. The director and any other person authorized in writing by the director at any reasonable time may enter any building, surface construction and demolition, factory, workshop, place, or premises of any kind wherein, or in respect of which, any industry except mining is carried on, any work is being or has been done or commenced, or any matter or thing is taking place which has been made the subject of any investigation, hearing, or arbitration by the division; inspect any work, material, machinery, appliance, or article therein; and interrogate any persons in or upon any such building, factory, workshop, place, or premises, except mines, mine workings, and ore milling operations, with respect to any matter or thing mentioned in this article.
  2. Any person who hinders or obstructs the director or any person authorized by the director in the exercise of any power conferred by this article 1, or any employer who in bad faith refuses reasonable access to the employer's premises, or any person who gives advance notice of any inspection to be conducted under this article 1 without authority from the director or the director's designee is subject to a penalty of not less than fifty dollars for each day that the conduct continues. The division shall transmit any penalty imposed and collected pursuant to this section to the state treasurer, who shall credit the money to the wage theft enforcement fund created in section 8-4-113 (3).

Source: L. 15: p. 574, § 20. C.L. § 4344. CSA: C. 97, § 22. CRS 53: § 80-1-20. C.R.S. 1963: § 80-1-20. L. 69: p. 580, § 34. L. 73: p. 920, § 6. L. 75: Entire section amended, p. 275, § 4, effective July 25. L. 77: (1) amended, p. 416, § 2, effective June 9. L. 80: Entire section amended, p. 450, § 3, effective April 13. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3136, § 72, effective March 1, 2022. L. 2022: (2) amended, (SB 22-161), ch. 370, p. 2626, § 2, effective August 10.

8-1-117. Director to have access to books - penalty.

  1. All books, records, and payrolls of employers, showing or reflecting in any way upon the amount of wage expenditure of such employers, and other data, facts, and statistics appertaining to the purposes of this article shall always be open for inspection by the director or any of his deputies or agents for the purpose of ascertaining the conditions of employment and such other information as may be necessary for the uses and purposes of the director in his administration of the law.
  2. Any employer that refuses to exhibit and furnish the director or any agents of the division an inspection of any books, records, and payrolls of the employer, showing or reflecting in any way upon the amount of wage expenditure of the employer, and other data, facts, and statistics appertaining to the purposes of this article 1 or that refuses to admit the director or any agent of the division to any place of employment shall pay a penalty of not less than fifty dollars for each day that the failure, neglect, or refusal continues. The division shall transmit any penalty imposed and collected pursuant to this section to the state treasurer, who shall credit the money to the wage theft enforcement fund created in section 8-4-113 (3).

Source: L. 15: p. 574, § 21. L. 21: p. 835, § 7. C.L. § 4345. CSA: C. 97, § 23. CRS 53: § 80-1-21. C.R.S. 1963: § 80-1-21. L. 69: p. 580, § 35. L. 72: p. 604, § 104. L. 2022: (2) amended, (SB 22-161), ch. 370, p. 2627, § 3, effective August 10.

Cross references: For the right of the director to have access to books of employers under the "Workers' Compensation Act of Colorado", see § 8-47-208.

ANNOTATION

Law reviews. For article, "The Occupational Disease Disability Act from the Standpoint of the Claimant", see 28 Dicta 41 (1951).

8-1-118. Rules of evidence - procedure.

The director, or persons designated by him, shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as provided in this article or by the rules of the division, but he may make such investigations in such manner as in his judgment are best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this article.

Source: L. 15: p. 574, § 22. C.L. § 4346. CSA: C. 97, § 24. CRS 53: § 80-1-22. C.R.S. 1963: § 80-1-22. L. 69: p. 581, § 36. L. 72: p. 604, § 105. L. 86: Entire section amended, p. 466, § 11, effective July 1.

ANNOTATION

Law reviews. For note, "Right of Cross-Examination Before Administrative Agencies in Colorado", see 29 Dicta 446 (1952). For note, "The Right to Cross-Examine Adverse Witnesses as a Part of Due Process in Hearings Before Colorado Agencies", see 31 Dicta 383 (1954). For note, "The Admissibility of Hearsay in Hearings Before Workmen's Compensation Commissions", see 31 Dicta 423 (1954).

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment to this section vesting in the director of the division of labor powers and duties previously exercised by the industrial commission.

This section cannot be so construed as to wipe out basic and fundamental rules governing the competency of evidence required to establish a fact in all judicial or quasi-judicial proceedings and which are essential ingredients of due process of law. A right created by statute cannot be denied where the sole support for that denial is evidence which under the law of the land has been held incompetent by the courts. Neither can a liability created by law attach where the only support therefor is incompetent evidence, to the introduction of which proper objection is made. Williams v. New Amsterdam Cas. Co., 136 Colo. 458, 319 P.2d 1078 (1957).

For this section means that, while the industrial commission's inquiry is not limited by the common law or statutory rules of evidence or by technical or formal rules of procedure and that it may, in its discretion, accept any evidence that is offered, in the end there must be a residuum of legal evidence to support the claim before an award can be made. Williams v. New Amsterdam Cas. Co., 136 Colo. 458, 319 P.2d 1078 (1957).

However, it is not required that the residuum of legal evidence should independently of hearsay evidence establish an accident, as the sufficiency of the residuum of legal evidence cannot be measured by the mechanical formula. Williams v. New Amsterdam Cas. Co., 136 Colo. 458, 319 P.2d 1078 (1957).

Rather, there must be evidence setting forth facts of a probative character outside of hearsay statements to prove the award and show it is fair and just. Williams v. New Amsterdam Cas. Co., 136 Colo. 458, 319 P.2d 1078 (1957).

And reviewing courts may not interfere with the findings of the commission if there is competent probative evidence in support thereof. It is only when the showing made is without probative force and effect, or is of such a character as not to constitute any legitimate evidence, that the award will be disturbed. Williams v. New Amsterdam Cas. Co., 136 Colo. 458, 319 P.2d 1078 (1957).

Industrial commission is not bound to follow rigid rules of evidence in justly administering the workmen's compensation act. San Isabel Elec. Ass'n v. Bramer, 182 Colo. 15, 510 P.2d 438 (1973).

Admission of hearsay evidence by claimant was proper where testimony was merely cumulative and augmented competent evidence so as not to vitiate findings. San Isabel Elec. Ass'n v. Bramer, 182 Colo. 15, 510 P.2d 438 (1973).

Introduction of evidence and examination of witnesses by employer's representative. Hearings are sufficiently informal so as to permit the employer's representative to question witnesses and introduce evidence when invited to do so by a hearing officer. Ross v. Indus. Comm'n, 39 Colo. App. 204, 566 P.2d 367 (1977).

8-1-119. Record of proceedings.

  1. A full and complete record shall be kept of all proceedings had before or under the order of the director on any investigation, and all testimony shall be taken down by a shorthand reporter appointed by the director.
  2. A transcribed copy of the evidence and proceedings, or any specific part thereof, of any investigation or hearing taken by a shorthand reporter appointed by the director, being certified by such shorthand reporter to be a true and correct transcript of the testimony, or a specific part thereof, on the investigation or hearing of a particular witness, carefully compared by him with his original notes, and to be a correct statement of the evidence and proceedings had on such investigation or hearing so purporting to be taken and subscribed, may be received as evidence by the director or any agent of the division and by any court with the same effect as if such shorthand reporter were present and testified to the facts so certified. A copy of such transcript shall be furnished on demand to any party upon the payment of fifty cents per folio.

Source: L. 15: p. 575, § 23. L. 21: p. 836, § 8. C.L. § 4347. CSA: C. 97, § 25. CRS 53: § 80-1-23. C.R.S. 1963: § 80-1-23. L. 69: p. 581, § 37. L. 75: (2) amended, p. 291, § 1, effective July 25. L. 82: Entire section amended, p. 620, § 5, effective April 2. L. 86: (2) amended, p. 466, § 12, effective July 1.

8-1-120. Depositions.

In any investigation, the director or any other party may cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in district courts. All such depositions shall be taken upon commission issued by the director and shall be taken in accordance with the laws and rules of court covering depositions in civil cases in the district courts of this state.

Source: L. 15: p. 575, § 24. C.L. § 4348. CSA: C. 97, § 26. CRS 53: § 80-1-24. C.R.S. 1963: § 80-1-24. L. 69: p. 581, § 38.

Cross references: For depositions in general, see C.R.C.P. 26-37; for the nonapplicability of this section to the "Labor Peace Act", see § 8-3-123.

8-1-121. Contempt - punishment - fees.

  1. In case of failure or refusal of any person to comply with an order of the director or subpoena issued by him or his agents, or refusal of a witness to testify to any matter regarding which he may be lawfully interrogated, or refusal to permit an inspection as provided in this article, the judge of the district court for the county in which the person resides or of the county in which said person has been ordered to appear and testify before said director, on application of the director or any person appointed by him, shall compel obedience by attachment proceedings as in the case of disobedience of the requirements of a subpoena issued from such district court or on a refusal to testify therein.
  2. Any person serving a subpoena or order shall receive the same fees as a sheriff for like service. Such subpoena or order may be served by any officer duly authorized to subpoena witnesses, or by any person designated by the director for such purpose, and proof of the serving of such subpoena or order shall be by the return of such person or officer endorsed thereon or attached thereto. Each witness who appears in answer to a subpoena before the director or his agent, if so ordered by the director, shall receive for his attendance the fees and mileage provided for in civil cases in the district court in the county where such witness attends which shall be paid in the same manner as other expenses of the division are paid.
  3. No witness subpoenaed at the instance of a party other than the director or his agent shall be entitled to compensation unless the director in his discretion shall so order.

Source: L. 15: p. 575, § 25. L. 21: p. 837, § 9. C.L. § 4349. CSA: C. 97, § 27. CRS 53: § 80-1-25. C.R.S. 1963: § 80-1-25. L. 69: p. 581, § 39. L. 72: p. 605, § 106.

Cross references: For contempt proceedings, see C.R.C.P. 107; for sheriff's fees, see § 30-1-104; for witness fees and mileage fees, see §§ 13-33-102 and 13-33-103.

8-1-122. Inquiries - scope - report.

  1. The director shall inquire into the general condition of labor in the principal industries in the state of Colorado and especially in those which are carried on in corporate forms; into existing relations between employers and employees; into the effect of industrial conditions on public welfare and into the rights and powers of the community to deal therewith; into the conditions of sanitation and safety of employees and the provisions for protecting the life, limb, and health of the employees; into relations existing between lessees of state lands and the state as to production and royalties or rentals paid and the relations between said lessees and their employees with respect to wages paid and conditions of labor; into the growth of associations of employers and wage earners and the effect of such associations upon the relations between employers and employees; into the extent and results of methods of collective bargaining; into any methods which have been tried in any state or in foreign countries for maintaining mutually satisfactory relations between employees and employers; into methods of avoiding or adjusting labor disputes through peaceable and conciliatory mediation and negotiations; and into the scope, methods, and resources of existing bureaus of labor and possible ways of increasing their efficiency and usefulness.
  2. The director shall seek to discover the underlying causes of dissatisfaction in the industrial situation, take all necessary means and methods within the powers of such director as provided by law, to alleviate the same, and report such remedial legislation as in the judgment of the director may be advisable, with his recommendations thereon. Such report shall accompany the annual report required in section 8-1-107 (2)(j).

Source: L. 15: p. 576, § 26. C.L. § 4350. CSA: C. 97, § 28. CRS 53: § 80-1-26. C.R.S. 1963: § 80-1-26. L. 64: p. 147, § 81. L. 69: p. 582, § 40.

ANNOTATION

Annotator's note. The case included in the annotations to this section which refers to the industrial commission was decided prior to the 1969 amendment to this section vesting in the director of the division of labor powers and duties previously exercised by the industrial commission.

This section contains broad investiture of power in the industrial commission of its own volition to inquire into the general conditions of labor in the principal industries of the state. Indus. Comm'n v. People ex rel. Metz, 86 Colo. 377, 281 P. 742 (1929).

But powers are limited and decisions may be set aside. While the commission is invested with broad and comprehensive powers in the investigation, adjustment, and settlement of labor disputes, its powers are limited and its decisions may be set aside by the courts where there is a manifest abuse of discretion, as where the commission has acted in excess of its powers or where its findings are not supported by the evidence. Indus. Comm'n v. People ex rel. Metz, 86 Colo. 377, 281 P. 742 (1929).

The director may inquire into the existing relations between school districts and their teachers, may collect any information regarding such relationship, and may develop policies aimed at avoiding or adjusting disputes arising within that relationship in order to further the purposes of the Industrial Relations Act. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

8-1-123. Arbitration.

The director shall do all in his power to promote the voluntary arbitration, mediation, and conciliation of disputes arising under an existing written agreement between employers and employees and to avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment. Arbitration undertaken pursuant to this section shall employ the procedures provided in part 2 of article 22 of title 13, C.R.S.

Source: L. 15: p. 577, § 27. C.L. § 4351. CSA: C. 97, § 29. CRS 53: § 80-1-27. C.R.S. 1963: § 80-1-27. L. 69: p. 582, § 41. L. 75: Entire section R&RE, p. 578, § 2, effective July 14.

Cross references: For the illegality of blacklists and boycotts, see §§ 8-2-110 and 8-2-112; for the nonapplicability of this section to the "Labor Peace Act", see § 8-3-123.

ANNOTATION

Annotator's note. The case included in the annotations to this section which refers to the industrial commission was decided prior to the 1969 amendment to this section vesting in the director of the division of labor powers and duties previously exercised by the industrial commission.

This section contains broad investiture of power in the industrial commission to promote voluntary arbitration and conciliation of disputes to avoid the necessity of resorting to strikes and lockouts. Indus. Comm'n v. People ex rel. Metz, 86 Colo. 377, 281 P. 742 (1929).

Undoubtedly the chief purpose of the exercise of the director's jurisdiction under the Industrial Relations Act is to avoid the necessity of resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings in matters of employment. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

Disputes over written contracts, or the lack thereof, between school districts as employers and teachers as employees may lead to legal proceedings which the director may seek to avoid by voluntary arbitration and mediation or conciliation. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

8-1-124. Witnesses - rules of evidence. (Repealed)

Source: L. 15: p. 577, § 28. C.L. § 4352. CSA: C. 97, § 30. CRS 53: § 80-1-28. C.R.S. 1963: § 80-1-128. L. 69: p. 583, § 42. L. 75: Entire section repealed, p. 578, § 3, effective July 14.

8-1-125. Disputes - jurisdiction - request for intervention - penalty.

  1. The director may exercise jurisdiction over any dispute between employer and employee affecting conditions of employment, or with respect to wages or hours, only when the employer and the employee request such intervention or when the dispute, as determined by the executive director, affects the public interest, and such jurisdiction shall continue until after the final hearing of such dispute and the entry of the final award therein or until said director shall enter an order disposing of or terminating such jurisdiction. The relation of the employer and employee shall continue uninterrupted by the dispute or anything arising out of the dispute until the final determination thereof by said director; and neither the employer nor any employee affected by any such dispute shall alter the conditions of employment with respect to wages or hours or any other condition of said employment; neither shall they, on account of such dispute, do or be concerned in doing directly or indirectly anything in the nature of a lockout or strike or suspension or discontinuance of work or employment.
  2. A request for intervention shall be submitted to the director by both the employer and the employee and shall set forth the facts, issues, or demands involved in the controversy or dispute, and each party to such dispute shall furnish the director such information within the time and as may be requested by the director.
  3. If either party uses this or any other provision of articles 1 to 18 of this title and part 3 of article 34 of title 24, C.R.S., for the purpose of unjustly maintaining a given condition of affairs through delay, such party is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.
  4. The director shall proceed with reasonable diligence in hearing all disputes and shall render a final award or decision therein without unnecessary delay.

Source: L. 15: p. 578, § 29. L. 21: p. 838, § 10. C.L. § 4353. CSA: C. 97, § 31. CRS 53: § 80-1-29. C.R.S. 1963: § 80-1-29. L. 69: p. 583, § 43. L. 77: (7) amended, p. 414, § 2, effective June 1. L. 83: (7) amended, p. 700, § 3, effective June 10. L. 86: (7) amended, p. 466, § 13, effective July 1. L. 90: Entire section R&RE, p. 461, § 1, effective May 24.

ANNOTATION

Law reviews. For article, "Some Legal Aspects of the Colorado Coal Strike", see 4 Den. B. Ass'n Rec. 22 (Dec. 1927). For article, "The Regional Transportation District Strike and the Colorado Labor Peace Act: A Study in Public Sector Collective Bargaining", see 54 U. Colo. L. Rev. 203 (1983).

The Industrial Relations Act guarantees that there is no absolute right to strike by public employees in Colorado and that once the director takes jurisdiction of a labor dispute, the status quo shall be maintained since so long as the director has jurisdiction of a labor dispute, several tiers of substantive and procedural conditions on the right to strike, which determine when public employees may exercise their right to strike, preclude the dangers otherwise inherent to an absolute right to strike. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

"Conditions of employment" does not include matters such as union representation and picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

Rather "conditions of employment" refers to conditions existing at "places of employment" which directly affect the physical safety, health, and welfare of employees. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

Director of division of labor and employment had jurisdiction to continue teachers' employment conditions during labor dispute. The teachers selected their association as their representative and the relationship between the association and the school district is essentially that of employer and employee. Denver Classroom Teachers Ass'n v. Sch. Dist. No. 1, 921 P.2d 70 (Colo. App. 1996).

School district's duty to deduct teachers association dues was a "condition of employment" and was within the director's order that the school district and teachers association not alter conditions of employment during labor dispute. Denver Classroom Teachers Ass'n v. Sch. Dist. No. 1, 921 P.2d 70 (Colo. App. 1996).

Strike unlawful where workers do not give notice. Indus. Comm'n v. People ex rel. Metz, 86 Colo. 377, 281 P. 742 (1929).

8-1-126. Lockouts and strikes unlawful - when.

  1. It is unlawful for any employee in the state personnel system or for any labor organization, through formal action or through its agents, to incite, encourage, aid, or participate in a strike, stoppage of work, slowdown, or interruption of operations by employees in the state personnel system.
  2. It is unlawful for any employer to declare or cause a lockout, or for any employee to go on strike, on account of any dispute prior to or during an investigation, hearing, or arbitration of such dispute by the director, or the board, under the provisions of this article. Nothing in this article shall prohibit the suspension or discontinuance of any industry or of the working of any persons therein for any cause not constituting a lockout or strike, or to prohibit the suspension or discontinuance of any industry or of the working of any person therein, which industry is not affected with a public interest. Nothing in this article shall be held to restrain any employer from declaring a lockout, or any employee, except an employee who is in the state personnel system, from going on strike in respect to any dispute after the same has been duly investigated, heard, or arbitrated, under the provisions of this article.

Source: L. 15: p. 578, § 30. L. 21: p. 840, § 11. C.L. § 4354. L. 23: p. 721, § 2. CSA: C. 97, § 32. L. 41: p. 531, § 1. CRS 53: § 80-1-30. C.R.S. 1963: § 80-1-30. L. 69: p. 584, § 44. L. 72: p. 605, § 107. L. 2008: Entire section amended, p. 292, § 2, effective April 3.

ANNOTATION

Law reviews. For article, "Public Employee Strikes in C olorado: The Supreme C ourt Adopts a New Rule", see 22 Colo. Law. 1 (1993).

This section is constitutional only because it excludes from its operation all business "not affected with a public interest" as that phrase is usually interpreted and applied. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921); People ex rel. Indus. Comm'n v. Aladdin Theater Corp., 96 Colo. 527, 44 P.2d 1022 (1935).

And one reason for holding a business to be affected with a public interest is that it is a practical monopoly. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921).

Coal mining is affected with a public interest. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921), distinguishing In re Morgan, 26 Colo. 415, 58 P. 1071 (1899).

This section provides for the situation where negotiations between school districts and their teachers over salaries and services may reach an impasse and a strike may appear to the teachers as the only remaining alternative, by forbidding a strike while the director maintains jurisdiction but permitting a strike after that jurisdiction terminates should the employees deem a strike to be in their best interests. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

This section provides that nothing in the Industrial Relations Act shall be construed to restrain any employee from striking in any dispute over which the director's jurisdiction is concluded, and when the director terminated jurisdiction, the teachers were free to exercise their right to strike or not according to their view of their best interests. Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo. 1992).

While the theater business is not included in the phrase "affected with a public interest" it is not so easy to say what is included. Many attempts to do so have been made by the courts, but the theater business cannot pass the test of any. Perhaps the best discussion of the subject is to be found in Wolff Packing Co. v. Court of Indus. Relations (262 U.S. 522, 43 S. Ct. 630, 67 L. Ed. 1103 (1923)). Such being the correct interpretation of the phrase in question, the entire controversy is disposed of by Tyson & Bro. v. Banton (273 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 (1927)), holding the theater business not affected with a public interest. People ex rel. Indus. Comm'n v. Aladdin Theater Corp., 96 Colo. 527, 44 P.2d 1022 (1935).

A charge in the language of the statute is sufficient. People v. Fontuccio, 73 Colo. 288, 215 P. 145 (1923).

This section was held not pertinent to determining whether employees were qualified for unemployment compensation benefits when their unemployment was due to a labor dispute where the director of labor was enjoined by a federal court from taking any further action in the proceeding. Kania v. Shaffer, 31 Colo. App. 538, 506 P.2d 384 (1972).

8-1-127. When findings or awards are binding. (Repealed)

Source: L. 15: p. 579, § 31. L. 21: p. 840, § 12. C.L. § 4355. CSA: C. 97, § 33. CRS 53: § 80-1-31. C.R.S. 1963: § 80-1-31. L. 69: p. 584, § 45. L. 72: p. 605, § 108. L. 75: Entire section repealed, p. 578, § 3, effective July 14.

8-1-128. Petition - writ - dissolution.

The director of the division, as petitioner, may file in the district court of the city and county of Denver, or of any county in which the place of employment or any part thereof is situated, a verified petition against any employers or employees, or both, as respondents, and setting forth any violation or threatened or attempted violation of any provisions of section 8-1-125 or 8-1-126, and, thereupon, without bond and without notice, the district court shall issue its mandatory writ enjoining the alleged violations, or attempted or threatened violations of this article, and ordering and requiring the respondents to maintain all the conditions of employment in status quo and without change until after the dispute or controversy has been investigated and heard by the director and the final findings, decision, order, or award of the director made and entered. Any respondent may move the court to dissolve the mandatory writ as to that respondent, and, upon at least five days' notice to the director, the motion shall be set down for hearing, but the mandatory writ shall not be dissolved without proof of full compliance by the respondent with all the provisions of this article and orders of the director and that the continuance in effect of the mandatory writ is causing or will cause the respondent great and irreparable injury. The court may require such security of the respondent as the court determines adequate to enforce obedience to the provisions of this article on the part of the respondent before the mandatory writ is dissolved.

Source: L. 15: p. 579, § 32. L. 21: p. 841, § 13. C.L. § 4356. CSA: C. 97, § 34. L. 41: p. 532, § 2. CRS 53: § 80-1-32. C.R.S. 1963: § 80-1-32. L. 69: p. 584, § 46. L. 72: p. 605, § 109. L. 2016: Entire section amended, (HB 16-1323), ch. 131, p. 376, § 4, effective August 10.

ANNOTATION

"Conditions of employment" does not include matters such as union representation and picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

Rather, "conditions of employment" refers to conditions existing at "places of employment" which directly affect the physical safety, health, and welfare of employees. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

The director of the division of labor has no authority to enjoin peaceful picketing under this section while unfair labor practice charges are pending. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

8-1-129. Strikes and lockouts - penalties.

  1. Any employer declaring or causing a lockout contrary to the provisions of this article 1 commits a class 2 misdemeanor. Each day or part of a day that such lockout exists shall constitute a separate offense under this section.
  2. Any employee who goes on strike contrary to the provisions of this article 1 commits a class 2 misdemeanor. Each day or part of a day that the employee is on strike shall constitute a separate offense under this section.
  3. Any person who incites, encourages, or aids in any manner any employer to declare or continue a lockout, or any employee to go or continue on strike contrary to the provisions of this article 1, commits a petty offense.

Source: L. 15: p. 580, § 33. L. 21: p. 842, § 14. C.L. § 4357. CSA: C. 97, § 35. CRS 53: § 80-1-33. C.R.S. 1963: § 80-1-33. L. 72: p. 606, § 110. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3137, § 73, effective March 1, 2022.

ANNOTATION

This section is not in violation of § 10 of art. II, Colo. Const., concerning freedom of speech. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921).

Information charging violation of this section in language of statute held sufficient. People v. Fontuccio, 73 Colo. 288, 215 P. 145 (1923).

8-1-130. Judicial review.

The director has full power to hear and determine all questions within his jurisdiction, and his findings, award, and order issued thereon shall be final agency action. Any person affected by any finding, order, or award of the director may seek judicial review as provided in section 24-4-106, C.R.S.

Source: L. 15: p. 580, § 34. C.L. § 4358. CSA: C. 97, § 36. CRS 53: § 80-1-34. C.R.S. 1963: § 80-1-34. L. 69: p. 585, § 47. L. 72: p. 606, § 111. L. 86: Entire section amended, p. 467, § 14, effective July 1.

ANNOTATION

Annotator's note. The case included in the annotations to this section which refers to the industrial commission was decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred some of its powers, duties, and functions under the workmen's compensation act to the division of labor.

Commission not stripped of authority to hold hearings and make findings. The general assembly did not intend to strip the commission of its general authority to hold hearings and make findings of fact, although such language was deleted from § 8-53-106 (2) by amendment in 1973. There are numerous other references within the workmen's compensation act to the commission's general authority to hold hearings and make factual findings. Harrison W. Corp. v. Hicks' Claimants, 185 Colo. 142, 522 P.2d 722 (1974).

8-1-131. Review - notice - evidence - order. (Repealed)

Source: L. 15: p. 580, § 34. C.L. § 4358. CSA: C. 97, § 36. CRS 53: § 80-1-34. C.R.S. 1963: § 80-1-34. L. 69: p. 585, § 47. L. 72: p. 606, § 111. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-132. Final findings and awards - interlocutory orders - modification. (Repealed)

Source: L. 15: p. 581, § 36. C.L. § 4360. CSA: C. 97, § 37. CRS 53: § 80-1-36. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-132.5. Fact-finding by commission - workmen's compensation. (Repealed)

Source: L. 81: Entire section added, p. 476, § 1, effective May 26. L. 86: Entire section repealed, p. 1223, § 40, effective July 1.

8-1-133. Court to modify or vacate - venue. (Repealed)

Source: L. 15: p. 581, § 37. C.L. § 4361. CSA: C. 97, § 39. CRS 53: § 80-1-137. C.R.S. 1963: § 80-1-37. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-134. Review - complaint - answer - hearing. (Repealed)

Source: L. 15: p. 582, § 38. C.L. § 4362. CSA: C. 97, § 40. CRS 53: § 80-1-38. C.R.S. 1963: § 80-1-38. L. 69: p. 586, § 50. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-135. Cause referred back to director and commission - procedure. (Repealed)

Source: L. 15: p. 582, § 39. C.L. § 4363. CSA: C. 97, § 41. CRS 53: § 80-1-39. C.R.S. 1963: § 80-1-39. L. 69: p. 587, § 51. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-136. Setting aside order of director or commission. (Repealed)

Source: L. 15: p. 583, § 40. C.L. § 4364. CSA: C. 97, § 42. CRS 53: § 80-1-40. C.R.S. 1963: § 80-1-40. L. 69: p. 587, § 52. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-137. Appellate review. (Repealed)

Source: L. 15: p. 584, § 41. C.L. § 4365. CSA: C. 97, § 43. CRS 53: § 80-1-41. C.R.S. 1963: § 80-1-41. L. 69: p. 588, § 53. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-138. Fees - costs - counsel for director or commission. (Repealed)

Source: L. 15: p. 584, § 42. C.L. § 4366. CSA: C. 97, § 44. CRS 53: § 80-1-42. C.R.S. 1963: § 80-1-42. L. 69: p. 588, § 54. L. 72: p. 607, § 113. L. 86: Entire section repealed, p. 502, § 125, effective July 1.

8-1-139. Failure of witness to appear or testify - penalty - repeal. (Repealed)

Source: L. 15: p. 585, § 43. L. 21: p. 843, § 15. C.L. § 4367. CSA: C. 97, § 45. CRS 53: § 80-1-43. C.R.S. 1963: § 80-1-43. L. 69: p. 588, § 55. L. 86: Entire section amended, p. 467, § 15, effective July 1. L. 2021: (3) added by revision, (SB 21-271), ch. 462, pp. 3137, 3331, §§ 74, 803.

Editor's note: Subsection (3) provided for the repeal of this section, effective March 1, 2022. (See L. 2021, pp. 3137, 3331.)

8-1-140. Violation - penalty.

  1. If an employer, employee, or any other person violates any provision of this article 1, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined for which no penalty has been specifically provided, such employer, employee, or any other person commits a petty offense.
  2. If any employer, employee, or any other person fails, refuses, or neglects to perform any duty lawfully enjoined within the time prescribed by the director or fails, neglects, or refuses to obey any lawful order made by the director or any judgment or decree made by any court as provided in this article 1, for each such violation, the employer, employee, or any other person shall pay a penalty of not less than one hundred dollars for each day the violation, failure, neglect, or refusal continues. The division shall transmit any penalty imposed and collected pursuant to this section to the state treasurer, who shall credit the money to the wage theft enforcement fund created in section 8-4-113 (3).
  3. In the case of a corporation, the violation of any of the provisions of this article, including any violation fixed as a misdemeanor or other crime, is considered a violation of the provisions of this article by all officers, agents, and representatives of said corporation aiding, abetting, advising, encouraging, participating, inciting, or acquiescing in such violation, and they are individually guilty of such violation and subject to the fines, penalties, and punishments provided in this article.

Source: L. 15: p. 585, § 44. L. 21: p. 843, § 16. C.L. § 4368. CSA: C. 97, § 46. CRS 53: § 80-1-44. C.R.S. 1963: § 80-1-44. L. 69: p. 589, § 56. L. 72: p. 607, § 114. L. 86: (2) amended, p. 467, § 16, effective July 1. L. 2021: (1) amended, (SB 21-271), ch. 462, p. 3137, § 75, effective March 1, 2022. L. 2022: (2) amended, (SB 22-161), ch. 370, p. 2627, § 4, effective August 10.

8-1-141. Each day separate offense.

Every day during which any employer or officer or agent thereof or any employee fails to comply with any lawful order of the director or to perform any duty imposed by this article constitutes a separate and distinct violation thereof.

Source: L. 15: p. 585, § 45. C.L. § 4369. CSA: C. 97, § 47. CRS 53: § 80-1-45. C.R.S. 1963: § 80-1-45. L. 69: p. 589, § 57. L. 72: p. 608, § 115. L. 86: Entire section amended, p. 467, § 17, effective July 1.

8-1-142. Collection of penalties.

All penalties provided for in this article 1 shall be collected in a civil action brought against the employer or employee in the name of the director, which civil action may be an administrative action or a judicial action authorized by law. Any fine provided in this article 1 is considered a penalty and recoverable in a civil action as provided in this section unless the violation of this article 1, for the punishment of which said fine is provided, is designated as a misdemeanor or other crime.

Source: L. 15: p. 585, § 46. L. 21: p. 844, § 17. C.L. § 4370. CSA: C. 97, § 48. CRS 53: § 80-1-46. C.R.S. 1963: § 80-1-46. L. 69: p. 589, § 58. L. 72: p. 608, § 116. L. 2022: Entire section amended, (SB 22-161), ch. 370, p. 2627, § 5, effective August 10.

8-1-143. Costs - counsel for director - attorney general and district attorney to enforce.

  1. In proceedings to review any finding, order, or award, costs as between the parties shall be allowed in the discretion of the court, but no costs may be taxed against the director or the division.
  2. In any action for the review of any finding, order, or award and upon appellate review thereof, it is the duty of the district attorney of the county wherein said action is pending, or the attorney general if requested by the director, to appear on behalf of the division, whether any other party defendants should have appeared or been represented in the action or not. Upon request of the director, the attorney general or the district attorney of any district or county shall institute and prosecute the necessary proceedings for the enforcement of any of the provisions of this article, or for the recovery of any money due the division, or any penalty provided for in this article, and shall defend in like manner all suits, actions, or proceedings brought against the director. No district attorney or any assistant or deputy district attorney, nor the attorney general or deputy or assistant attorney general within this state, shall appear in any proceedings, hearing, investigation, arbitration, award, or compensation matter, except as attorney for and on behalf of said director and employees of the division.

Source: L. 15: p. 586, § 47. L. 21: p. 845, § 18. C.L. § 4371. CSA: C. 97, § 49. CRS 53: § 80-1-47. C.R.S. 1963: § 80-1-47. L. 69: p. 589, § 59. L. 72: p. 608, § 117. L. 86: Entire section R&RE, p. 467, § 18, effective July 1.

ANNOTATION

Immediate threat of enforcement under this section is not constitutionally required for declaratory judgment. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

8-1-144. Penalty for false statements.

If, for the purpose of obtaining any order, benefit, or award under the provisions of this article, either for himself or herself or for any other person, anyone willfully makes a false statement or representation, he or she commits a class 5 felony, as defined in section 18-1.3-401, C.R.S.

Source: L. 15: p. 586, § 48. C.L. § 4372. CSA: C. 97, § 50. CRS 53: § 80-1-48. C.R.S. 1963: § 80-1-48. L. 72: pp. 561, 608, §§ 26, 118. L. 89: Entire section amended, p. 821, § 4, effective July 1. L. 2002: Entire section amended, p. 1466, § 16, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

8-1-145. Authority of department of public health and environment not affected.

Nothing in this article shall be construed to affect the authority of the department of public health and environment relative to the public health.

Source: L. 15: p. 586, § 50. C.L. § 4373. CSA: C. 97, § 51. CRS 53: § 80-1-49. C.R.S. 1963: § 80-1-49. L. 69: p. 589, § 60. L. 72: p. 609, § 119. L. 94: Entire section amended, p. 2721, § 311, effective July 1.

8-1-146. Effect of transfer of powers, duties, and functions.

  1. Repealed.
  2. The division of labor standards and statistics, the division of employment and training, the division of unemployment insurance, the state board of pharmacy, and the industrial claim appeals panel in the industrial claim appeals office, which perform any of the powers, duties, and functions performed by the industrial commission prior to its abolishment on July 1, 1986, are the successors in every way with respect to those powers, duties, and functions, except as otherwise provided in this article or by law. Every act performed in the exercise of those powers, duties, and functions has the same force and effect as if performed by the commission prior to July 1, 1986. Whenever the commission is referred to or designated by any law, contract, insurance policy, bond, or other document, the reference or designation applies to the division of labor standards and statistics, the division of employment and training, the division of unemployment insurance, the state board of pharmacy, or the industrial claim appeals panel in the industrial claim appeals office, as the case may be.

Source: L. 69: p. 662, § 252. C.R.S. 1963: § 80-1-50. L. 86: Entire section amended, p. 468, § 19, effective July 1; entire section amended, p. 531, § 26, effective July 1, 1987. L. 91: (1) amended, p. 1907, § 5, effective June 1. L. 2002: (1) repealed, p. 1880, § 22, effective July 1. L. 2012: (2) amended, (HB 12-1120), ch. 27, p. 104, § 9, effective June 1. L. 2016: (2) amended, (HB 16-1323), ch. 131, p. 376, § 5, effective August 10.

Editor's note: The effective date for amendments to this section by House Bill 12-1120 (chapter 27, Session Laws of Colorado 2012) was changed from August 8, 2012, to June 1, 2012, by House Bill 12S-1002 (First Extraordinary Session, chapter 2, p. 2432, Session Laws of Colorado 2012).

8-1-147. Actions, suits, or proceedings not to abate by reorganization - maintenance by or against successors. (Repealed)

Source: L. 69: p. 662, § 253. C.R.S. 1963: § 80-1-51. L. 86: Entire section amended, p. 469, § 20, effective July 1; entire section amended, p. 531, § 27, effective July 1, 1987. L. 91: (1) amended, p. 1908, § 6, effective June 1. L. 2002: (1) amended, p. 1880, § 23, effective July 1. L. 2012: Entire section repealed, (HB 12-1120), ch. 27, p. 104, § 10, effective June 1.

Editor's note: The effective date for the repeal of this section by House Bill 12-1120 (chapter 27, Session Laws of Colorado 2012) was changed from August 8, 2012, to June 1, 2012, by House Bill 12S-1002 (First Extraordinary Session, chapter 2, p. 2432, Session Laws of Colorado 2012).

8-1-148. Rules, regulations, rates, and orders adopted prior to article - abolishment of commission - continued.

  1. All rules, regulations, rates, orders, and awards of the commission lawfully adopted prior to July 1, 1969, shall continue to be effective until revised, amended, repealed, or nullified pursuant to law.
  2. All rules, regulations, rates, orders, and awards of the commission lawfully adopted prior to July 1, 1986, shall continue to be effective until revised, amended, repealed, or nullified pursuant to law.

Source: L. 69: p. 662, § 254. C.R.S. 1963: § 80-1-52. L. 86: Entire section amended, p. 469, § 21, effective July 1.

8-1-149. Transfer of officers, employees, and property. (Repealed)

Source: L. 69: p. 662, § 255. C.R.S. 1963: § 80-1-53. L. 86: Entire section amended, p. 469, § 22, effective July 1; entire section amended, p. 531, § 28, effective July 1, 1987. L. 91: (1) amended, p. 1908, § 7, effective June 1. L. 2002: (1) amended, p. 1880, § 24, effective July 1. L. 2012: Entire section repealed, (HB 12-1120), ch. 27, p. 104, § 10, effective June 1.

Editor's note: The effective date for the repeal of this section by House Bill 12-1120 (chapter 27, Session Laws of Colorado 2012) was changed from August 8, 2012, to June 1, 2012, by House Bill 12S-1002 (First Extraordinary Session, chapter 2, p. 2432, Session Laws of Colorado 2012).

8-1-150. Licensing functions subject to periodic review. (Repealed)

Source: L. 79: Entire section added, p. 1609, § 1, effective June 7. L. 83: Entire section repealed, p. 701, § 5, effective June 10.

8-1-151. Public safety inspection fund created.

There is hereby created in the state treasury a fund, to be known as the public safety inspection fund, which shall consist of moneys credited thereto pursuant to sections 8-20-104, 8-20-1002, and 9-7-108.5, C.R.S. All moneys in the public safety inspection fund shall be subject to annual appropriation by the general assembly for the public safety inspection activities of the division of oil and public safety. The moneys in the public safety inspection fund shall not be credited or transferred to the general fund or any other fund of the state.

Source: L. 85: Entire section added, p. 337, § 1, effective July 1. L. 86: Entire section amended, p. 470, § 23, effective July 1. L. 2001: Entire section amended, p. 1140, § 68, effective June 5. L. 2008: Entire section amended, p. 984, § 1, effective May 21; entire section amended, p. 1020, § 1, effective May 21. L. 2009: Entire section amended, (HB 09-1151), ch. 230, p. 1060, § 13, effective January 1, 2010.

Editor's note: Amendments to this section by Senate Bill 08-051 and House Bill 08-1103 were harmonized.

8-1-152. Applications for licenses - authority to suspend licenses - rules.

  1. Every application by an individual for a license issued by the department or any authorized agent of the department shall require the applicant's name, address, and social security number.
  2. The department or any authorized agent of the department shall deny, suspend, or revoke any license pursuant to the provisions of section 26-13-126, C.R.S., and any rules promulgated in furtherance thereof, if the department or agent thereof receives a notice to deny, suspend, or revoke from the state child support enforcement agency because the licensee or applicant is out of compliance with a court or administrative order for current child support, child support debt, retroactive child support, child support arrearages, or child support when combined with maintenance or because the licensee or applicant has failed to comply with a properly issued subpoena or warrant relating to a paternity or child support proceeding. Any such denial, suspension, or revocation shall be in accordance with the procedures specified by rule of the department, rules promulgated by the state board of human services, and any memorandum of understanding entered into between the department or an authorized agent thereof and the state child support enforcement agency for the implementation of this section and section 26-13-126, C.R.S.
    1. The department shall enter into a memorandum of understanding with the state child support enforcement agency, which memorandum shall identify the relative responsibilities of the department and the state child support enforcement agency in the department of human services with respect to the implementation of this section and section 26-13-126, C.R.S.
    2. The appropriate rule-making body of the department is authorized to promulgate rules to implement the provisions of this section.
  4. For purposes of this section, "license" means any recognition, authority, or permission that the department or any authorized agent of the department is authorized by law to issue for an individual to practice a profession or occupation or for an individual to participate in any recreational activity. "License" may include, but is not necessarily limited to, any license, certificate, certification, letter of authorization, or registration issued for an individual to practice a profession or occupation or for an individual to participate in any recreational activity.

Source: L. 97: Entire section added, p. 1262, § 2, effective July 1.

Cross references: For the legislative declaration contained in the 1997 act enacting this section, see section 1 of chapter 236, Session Laws of Colorado 1997.

8-1-153. Private employers - veterans' preference hiring policy - definitions.

  1. As used in this section:
    1. "Eligible individual" means:
      1. A veteran with a disability who has a one hundred percent permanent and total disability rating if the date of hiring is within ten years after the veteran's date of discharge;
      2. A veteran, a veteran with a less than one hundred percent permanent and total disability rating, a member of the military reserves, or a member of the National Guard who received discharge document DD214 if the date of hiring is within five years after the date of discharge; or
      3. The spouse of a service member killed in the line of duty if the date of hiring is within five years after the date of the death of the service member.
    2. "Private employer" means a private, nonpublic person that employs one or more employees within the state.
    3. "Veteran" has the same meaning as set forth in section 8-14.3-202 (8).
    4. "Veterans' preference hiring policy" means a private employer's preference for hiring an eligible individual if the eligible individual is at least as qualified as the other applicants.
    5. "Veteran with a disability" means a veteran who has a compensable, service-connected disability as adjudicated by the United States department of veterans affairs or the appropriate branch of the armed forces.
  2. A private employer may adopt and apply a veterans' preference hiring policy if:
    1. The private employer applies the veterans' preference hiring policy uniformly to all hiring decisions;
    2. The private employer requires a veteran to provide proof of service by furnishing a copy of the veteran's discharge document DD214;
    3. The private employer requires the spouse of a service member killed in the line of duty to furnish proof of marriage to the service member killed in the line of duty and a copy of the service member's discharge document DD214 and the death certificate; and
    4. The veterans' preference hiring policy is in writing, public, and implemented at least fourteen days before it is applied to any new job posting or new hiring decision.
  3. The adoption and application of a veterans' preference hiring policy by a private employer in accordance with this section creates a rebuttable presumption that such policy is not a discriminatory or unfair employment practice in violation of part 4 of article 34 of title 24.
    1. On or before September 1, 2021, the Colorado office of economic development shall begin the development of production materials to educate and encourage employers to hire veterans.
    2. The general assembly shall appropriate twenty-five thousand dollars from the general fund to the Colorado office of economic development, created in section 24-48.5-101, for allocation to the Colorado office of film, television, and media, created in section 24-48.5-115, for the purposes of this subsection (4).
  5. A private employer may advertise for and actively recruit veterans to apply for employment with the private employer regardless of whether the private employer adopts a veterans' preference hiring policy.

Source: L. 2021: Entire section added, (HB 21-1065), ch. 295, p. 1757, § 1, effective September 7.

Labor Relations

ARTICLE 2 LABOR RELATIONS, GENERALLY

Cross references: For employment practices generally, see part 4 of article 34 of title 24.

Law reviews. For article, "Labor Law", which discusses Tenth C ircuit decisions dealing with labor law, see 61 Den. L.J. 343 (1984); for article, "Labor Law", which discusses Tenth C ircuit decisions dealing with labor law, see 62 Den. U. L. Rev. 253 (1985); for article, "Federal Preemption Under the NLRA: A Rule in Search of Reason", see 62 Den. U.L. Rev. 531 (1985); for article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 63 Den. U. L. Rev. 395 (1986); for article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 64 Den. U. L. Rev. 271 (1987); for article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 65 Den. U. L. Rev. 565 (1988); for article, "Retaliatory Discharge and the Economics of Deterrence", see 60 U. Colo. L. Rev. 91 (1989); for comment, "Continental Air Lines v. Keenan: Employee Handbooks as a Modification to Employment at Will", see 60 U. Colo. L. Rev. 169 (1989); for a discussion of Tenth Circuit decisions dealing with questions of labor law, see 67 Den. U. L. Rev. 751 (1990); for article, "A Guide to the Lesser-Known Work Laws in Colorado", see 43 Colo. Law. 49 (May 2014).

Section

PART 1 GENERAL PROVISIONS

PART 2 EMPLOYER'S LIABILITY

PART 1 GENERAL PROVISIONS

8-2-101. Combination of employees for peaceable objects lawful.

It is not unlawful for any two or more persons to unite, combine, or agree in any manner, to advise or encourage, by peaceable means, any persons to enter into any combination in relation to entering into or remaining in the employment of any person or corporation, or in relation to the amount of wages or compensation to be paid for labor, or for the purpose of regulating the hours of labor, or for the procuring of fair and just treatment from employers, or for the purpose of aiding and protecting their welfare and interests in any other manner not in violation of the constitution of this state or the laws made in pursuance thereof. This section shall not be so construed as to permit two or more persons, by threats of either bodily or financial injury, or by any display of force, to prevent or intimidate any other person from continuing in such employment as he may see fit, or to boycott or intimidate any employer of labor.

Source: L. 1889: p. 92, § 1. R.S. 08: § 3924. C.L. § 4150. CSA: C. 97, § 64. CRS 53: § 80-4-1. C.R.S. 1963: § 80-11-1.

Cross references: For unfair labor practices, see § 8-3-108.

ANNOTATION

This section limits combinations of employees to lawful purposes, some of which are specifically mentioned, and does not permit an unlawful combination in restraint of trade. Denver Jobbers' Ass'n v. People ex rel. Dickson, 21 Colo. App. 326, 122 P. 404 (1912).

In certain circumstances Colorado labor law protections for employees held preempted by federal law. Thayer v. McDonald, 781 P.2d 190 (Colo. App. 1989).

8-2-102. Coercion of employees unlawful.

It is unlawful for any individual, company, or corporation or any member of any firm, or an agent, officer, or employee of any company or corporation to prevent employees from forming, joining, or belonging to any lawful labor organization, union, society, or political party, or to coerce or attempt to coerce employees by discharging or threatening to discharge them from their employ or the employ of any firm, company, or corporation because of their connection with such lawful labor organization, union, society, or political party.

Source: L. 1897: p. 156, § 1. R.S. 08: § 3925. C.L. § 4151. CSA: C. 97, § 65. CRS 53: § 80-4-2. C.R.S. 1963: § 80-11-2.

ANNOTATION

Law reviews. For article, "Punitive Damages in Wrongful Discharge C ases", see 15 C olo. Law. 658 (1986).

Section is plain as to limit in its application to particular classes of persons. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

Where employment offers were made to commence employment on a certain date and individuals failed to report to work on that date due to union strike, such individuals are not employees protected by this section. DeJean v. United Airlines, Inc., 839 P.2d 1153 (Colo. 1992).

8-2-103. Penalty for coercing employees.

Any person or any member of any firm or an agent, officer, or employee of any such company or corporation, violating the provisions of section 8-2-102 commits a class 2 misdemeanor.

Source: L. 1897: p. 156, § 2. R.S. 08: § 3926. C.L. § 4152. CSA: C. 97, § 66. CRS 53: § 80-4-3. C.R.S. 1963: § 80-11-3. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3138, § 76, effective March 1, 2022.

8-2-104. Obtaining workmen by misrepresentation unlawful.

It is unlawful for any person, company, corporation, society, association, or organization of any kind doing business in this state, by itself or its agents or attorneys, to induce, influence, persuade, or engage workmen to change from one place of employment to another in this state, or to bring workmen of any class or calling into this state to work in any of the departments of labor in this state, through or by means of false or deceptive representations, false advertising, or false pretenses concerning the kind and character of the work to be done, or amount and character of the compensation to be paid for such work, or the sanitary or other conditions of the employment, or as to the existence or nonexistence of a strike or lockout pending between employer and employees, or failure to state in any advertisement, proposal, or contract for the employment that there is a strike, lockout, or other labor trouble at the place of the proposed employment, when in fact such strike, lockout, or other labor trouble then actually exists at such place, and it is deemed false advertisement and misrepresentation for the purposes of sections 8-2-104 to 8-2-107.

Source: L. 11: p. 486, § 1. C.L. § 4156. CSA: C. 97, § 71. CRS 53: § 80-4-4. C.R.S. 1963: § 80-11-4.

ANNOTATION

This section authorizes a claim for statutory fraud. Pittman v. Larson Distrib. Co., 724 P.2d 1379 (Colo. App. 1986).

No cause of action for misrepresentation where employee lived in Colorado before and after employment with defendant. Vaske v. DuCharme, McMillan & Assocs., Inc., 757 F. Supp. 1158 (D. Colo. 1990).

This section contemplates a strike, lockout, or other labor trouble that is in actual existence. The fact that the potential for such a dispute exists because a new collective bargaining agreement was being negotiated, combined with fact that potential employer told potential employees they were to be hired after new labor agreement was negotiated, does not allow individuals to claim that they were hired under false pretenses concerning employer's relationship with labor union. DeJean v. United Airlines, Inc., 839 P.2d 1153 (Colo. 1992).

Because plaintiff was unemployed at the time defendant offered employment, plaintiff was not a "workman" pursuant to statute. Schur v. Storage Tech. Corp., 878 P.2d 51 (Colo. App. 1994).

The elements of statutory fraud are the same as those for common law fraud, and, when the statements relied upon were mere predictions of future events rather than commitments or facts and were neither false when made nor made with the intent not to perform, there was no cause of action. Nelson v. Gas Research Inst., 121 P.3d 340 (Colo. App. 2005).

Applied in Roberts v. Conoco, Inc., 717 F. Supp. 724 (D. Colo. 1989).

8-2-105. Penalty.

Any person, company, corporation, society, association, or organization of any kind doing business in this state, as well as its agents, attorneys, servants, or associates, found guilty of violating section 8-2-104 or any part thereof commits a class 2 misdemeanor.

Source: L. 11: p. 487, § 2. C.L. § 4157. CSA: C. 97, § 72. CRS 53: § 80-4-5. C.R.S. 1963: § 80-11-5. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3138, § 77, effective March 1, 2022.

8-2-106. Armed guards - when lawful.

Any person who hires, aids, abets, or assists in hiring, through agencies or otherwise, persons to guard with arms or deadly weapons of any kind other persons or property in this state, or any person who enters this state armed with deadly weapons of any kind for any such purpose, without a permit in writing from the governor of this state commits a class 6 felony and shall be punished as provided in section 18-1.3-401, C.R.S. Nothing in sections 8-2-104 to 8-2-107 shall be construed to interfere with the right of any person, company, corporation, society, association, or organization to guard or protect its private property or private interests as is now provided by law. Sections 8-2-104 to 8-2-107 shall be construed only to apply in cases where workmen are brought into this state, or induced to go from one place to another in this state by any false pretenses, false advertising, or deceptive representations, or brought into this state under arms, or removed from one place to another in this state under arms.

Source: L. 11: p. 487, § 3. C.L. § 4158. CSA: C. 97, § 73. CRS 53: § 80-4-6. C.R.S. 1963: § 80-11-6. L. 77: Entire section amended, p. 869, § 19, effective July 1, 1979. L. 89: Entire section amended, p. 821, § 5, effective July 1. L. 2002: Entire section amended, p. 1466, § 17, effective October 1.

Editor's note: The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980).

Cross references: For the legislative declaration contained in the 2002 act amending this section, see section 1 of chapter 318, Session Laws of Colorado 2002.

8-2-107. Workman engaged by false representations to recover damages.

Any workman of this state, or any workman of another state who is influenced, induced, or persuaded to engage with any persons mentioned in section 8-2-104, through or by means of any of the things therein prohibited has a right of action for recovery of all damages that each such workman has sustained in consequence of the false or deceptive representations, false advertising, and false pretenses used to induce him to change his place of employment against any person, corporation, company, or association, directly or indirectly, causing such damages. In addition to all actual damages such workmen may have sustained, they shall be entitled to recover such reasonable attorney fees as the court shall fix, to be taxed as costs in any judgment recovered.

Source: L. 11: p. 487, § 4. C.L. § 4159. CSA: C. 97, § 74. CRS 53: § 80-4-7. C.R.S. 1963: § 80-11-7.

ANNOTATION

No false representation by defendant where, although plaintiff expressed an interest in "permanent" employment at time of interview, defendant never represented employment as "permanent" and handbook provided to plaintiff specifically stated that employment was subject to changing conditions. Further, fact that plaintiff moved to Colorado from out-of-state for the job and provided services commensurate with position, alone, without plaintiff providing any extra or special consideration for which a jury might find that plaintiff had purchased the job, inadequate for finding of promise of permanent employment. Schur v. Storage Tech. Corp., 878 P.2d 51 (Colo. App. 1994).

8-2-108. Unlawful for employer to prevent employees participating in politics.

  1. It is unlawful for any corporation, company, partnership, association, individual, or any employer of labor, or for any agent thereof to make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his or her employees from engaging or participating in politics or from becoming a candidate for public office or being elected to and entering upon the duties of any public office. Any person violating any of the provisions of this section commits a class 2 misdemeanor.
  2. Nothing in this section shall be construed to prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this section.

Source: L. 29: p. 429, §§ 1-3. CSA: C. 97, § 75. L. 37: p. 795, § 1. CRS 53: § 80-4-8. C.R.S. 1963: § 80-11-8. L. 2021: (1) amended, (SB 21-271), ch. 462, p. 3138, § 78, effective March 1, 2022.

8-2-109. Rights of person charged with contempt.

  1. In all cases where a person is charged with indirect criminal contempt for violation of a protection order or injunction issued by a court, the accused shall enjoy:
    1. The right as to admission to bail that is accorded to persons accused of crime;
    2. The right to be notified of the accusation and a reasonable time to make a defense, if the alleged contempt is not committed in the immediate view or presence of the court;
    3. Upon demand, the right to a speedy and public trial by an impartial jury of the judicial district wherein the contempt has been committed. This requirement shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice or to apply to the misbehavior, misconduct, or disobedience of any officer of the court in respect to the writs, order, or process of the court.
    4. The right to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge and if the attack occurred otherwise than in open court. Upon the filing of any such demand, the judge shall proceed no further, but another judge shall be designated by the presiding judge of said court. The demand shall be filed prior to the hearing in the contempt proceeding.

Source: L. 33: p. 412, § 10. CSA: C. 97, § 85. CRS 53: § 80-4-9. C.R.S. 1963: § 80-11-9. L. 2003: IP(1) amended, p. 1009, § 9, effective July 1.

8-2-110. Unlawful to publish blacklist.

No corporation, company, or individual shall blacklist, or publish, or cause to be blacklisted or published any employee, mechanic, or laborer discharged by such corporation, company, or individual, with the intent and for the purpose of preventing such employee, mechanic, or laborer from engaging in or securing similar or other employment from any other corporation, company, or individual.

Source: L. 1887: p. 58, § 1. R.S. 08: § 396. C.L. § 4160. CSA: C. 97, § 88. CRS 53: § 80-4-10. C.R.S. 1963: § 80-11-10.

Cross references: For arbitration to avoid necessity of blacklist, see § 8-1-123.

ANNOTATION

Section is plain as to limit in its application to particular classes of persons. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

8-2-111. Penalty for blacklisting.

If any officer or agent of any corporation, company, individual, or other person blacklists, publishes, or causes to be blacklisted or published any employee, mechanic, or laborer discharged by such corporation, company, or individual with the intent and for the purpose of preventing such employee, mechanic, or laborer from engaging in or securing similar or other employment from any other corporation, company, or individual, or in any manner conspires or contrives by correspondence, or otherwise, to prevent such discharged employee from securing employment, commits a class 2 misdemeanor.

Source: L. 1887: p. 58, § 2. R.S. 08: § 397. C.L. § 4161. CSA: C. 97, § 89. CRS 53: § 80-4-11. C.R.S. 1963: § 80-11-11. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3138, § 79, effective March 1, 2022.

8-2-111.5. Certain employment references - exception to blacklisting prohibition.

  1. The general assembly hereby finds, determines, and declares that the intent and purpose of the provisions of sections 8-2-110 and 8-2-111 which prohibit the maintenance or use of blacklists were enacted to protect employees from retribution and harassment in the pursuit of their lawful activities. The general assembly further finds, determines, and declares that these prohibitions against blacklisting have in some instances been abused and have been used as a shield for persons responsible for thefts and other misappropriations of funds from financial institutions regulated under title 11, C.R.S., or under federal law in securing employment from other such financial institutions. These abuses of the antiblacklisting provisions have resulted in pattern and serial criminal activities at great expense and harm to such financial institutions and their customers.
  2. In response to a request by another bank, savings and loan association, credit card or travel and entertainment card company, trust company, credit union, or other state or federally chartered lending institution operating in Colorado, it is not unlawful or a violation of the prohibitions against blacklisting specified in sections 8-2-110 and 8-2-111 for a bank, savings and loan association, credit card or travel and entertainment card company, trust company, credit union, or other state or federally chartered lending institution operating in Colorado, when acting in good faith, to disclose any information about any involvement in a theft, embezzlement, misappropriation, or other defalcation by an employee or former employee.
  3. No bank, savings and loan association, credit card or travel and entertainment card company, trust company, credit union, or other state or federally chartered lending institution operating in Colorado or any officer, director, or employee thereof is civilly liable for providing an employment reference described in subsection (2) of this section upon request if the information is provided in good faith.
  4. The provision of such employment information shall not constitute a violation of the prohibition against blacklisting as provided in sections 8-2-110 and 8-2-111, nor shall it constitute an unfair labor practice in violation of any provision of article 3 of this title.
  5. A bank, savings and loan association, credit card or travel and entertainment card company, trust company, credit union, or other state or federally chartered lending institution operating in Colorado or any officer, director, or employee thereof who discloses information under this section is presumed to be acting in good faith unless it is shown by a preponderance of the evidence that the institution, officer, director, or employee intentionally or recklessly disclosed false information about the employee or former employee.

Source: L. 89: Entire section added, p. 373, § 1, effective April 1, 1990. L. 97: (2), (3), and (5) amended, p. 352, § 1, effective April 19. L. 2013: (2), (3), and (5) amended, (SB13-154), ch. 282, p. 1470, § 26, effective July 1.

8-2-111.6. Health-care employers - immunity from civil liability - requirements - exception to blacklisting prohibition - legislative declaration.

  1. The general assembly hereby finds, determines, and declares that the intent and purpose of sections 8-2-110 and 8-2-111, which prohibit the maintenance or use of blacklists, is to protect employees from retribution and harassment in the pursuit of their lawful activities. The general assembly further finds, determines, and declares that, in the area of health care, these prohibitions against blacklisting have in some instances been abused and have been used as a shield by persons responsible for drug violations or for patient endangerment.
  2. In response to a request by a prospective or current employer of a health-care worker, it is neither unlawful nor a violation of the prohibitions against blacklisting specified in sections 8-2-110 and 8-2-111 for an employer, when acting in good faith, to disclose information known about any involvement in drug diversion, drug tampering, patient abuse, violation of drug or alcohol policies of the employer, or crimes of violence as listed in section 18-1.3-406 (2)(a), C.R.S., by the health-care worker who is an employee or a former employee of the responding employer.
      1. An employer who provides information in accordance with subsection (2) of this section is immune from civil liability for providing the information or for any consequences that result from the disclosure of the information unless the health-care worker shows by a preponderance of the evidence that the information is false and the employer providing the information knew or reasonably should have known that the information is false. (3) (a) (I) An employer who provides information in accordance with subsection (2) of this section is immune from civil liability for providing the information or for any consequences that result from the disclosure of the information unless the health-care worker shows by a preponderance of the evidence that the information is false and the employer providing the information knew or reasonably should have known that the information is false.
      2. The provision of employment information in accordance with subsection (2) of this section does not constitute blacklisting under section 8-2-110 or 8-2-111, nor does it constitute an unfair labor practice in violation of article 3 of this title.
    2. This subsection (3) applies to any employee, agent, or other representative of the responding employer who is authorized to provide and provides information to an employer in accordance with subsection (2) of this section.
  4. An employer or any officer, director, employee, or representative of the employer who discloses information under this section shall be presumed to be acting in good faith unless it is shown by a preponderance of the evidence that the facility, officer, director, employee, or representative of the employer intentionally or recklessly disclosed false information about the employee or former employee.
  5. For the purposes of this section, "health-care worker" means any person registered, certified, or licensed pursuant to articles 200 to 225, 235 to 300, and 310 of title 12 or article 3.5 of title 25, or any person who interacts directly with a patient or assists with the patient care process, who is currently employed by, or is a prospective employee of, the employer making the inquiry.

Source: L. 2011: Entire section added, (HB 11-1148), ch. 36, p. 99, § 1, effective July 1. L. 2012: (5) amended, (HB 12-1311), ch. 281, p. 1608, § 6, effective July 1. L. 2019: (5) amended, (HB 19-1172), ch. 136, p. 1646, § 17, effective October 1.

8-2-111.7. Employees working with persons with intellectual and developmental disabilities - immunity from civil liability - requirements - exception to blacklisting prohibition - legislative declaration - definitions.

  1. The general assembly hereby finds, determines, and declares that the intent and purpose of sections 8-2-110 and 8-2-111, which prohibit the maintenance or use of blacklists, is to protect employees from retribution and harassment in the pursuit of their lawful activities. The general assembly further finds, determines, and declares that these prohibitions against blacklisting have in some instances been abused and have been used as a shield by caregivers responsible for mistreatment, exploitation, neglect, or abuse of persons with developmental disabilities.
  2. In response to a request by a current or prospective employer of a caregiver, it is neither unlawful nor a violation of the prohibitions against blacklisting specified in sections 8-2-110 and 8-2-111 for an employer, when acting in good faith, to disclose information known about any involvement in the mistreatment, exploitation, neglect, or abuse of persons with intellectual and developmental disabilities as prohibited by section 25.5-10-221, C.R.S., by a caregiver.
      1. An employer who provides information in accordance with subsection (2) of this section is immune from civil liability for providing the information or for any consequences that result from the disclosure of the information unless the caregiver shows by a preponderance of the evidence that the information is false and the employer providing the information knew or reasonably should have known that the information is false. (3) (a) (I) An employer who provides information in accordance with subsection (2) of this section is immune from civil liability for providing the information or for any consequences that result from the disclosure of the information unless the caregiver shows by a preponderance of the evidence that the information is false and the employer providing the information knew or reasonably should have known that the information is false.
      2. The provision of employment information in accordance with subsection (2) of this section does not constitute blacklisting under section 8-2-110 or 8-2-111, nor does it constitute an unfair labor practice in violation of article 3 of this title.
    2. This subsection (3) applies to any employee, agent, or other representative of the responding employer who is authorized to provide and provides information to a current or prospective employer in accordance with subsection (2) of this section.
  4. An employer or any officer, director, employee, or representative of the employer who discloses information under this section is presumed to be acting in good faith unless it is shown by a preponderance of the evidence that the facility, officer, director, employee, or representative of the employer intentionally or recklessly disclosed false information about the caregiver.
  5. For the purposes of this section:
    1. "Caregiver" means a person currently or formerly employed to work with a person with an intellectual and developmental disability or a person who provides host home services by contract as part of residential services and supports as described in section 25.5-10-206 (1)(e), C.R.S. "Caregiver" does not mean a person who is employed by or who has contracted to work with a school district.
    2. "Person with an intellectual and developmental disability" has the same meaning as defined in section 25.5-10-202, C.R.S.

Source: L. 2011: Entire section added, (SB 11-193), ch. 280, p. 1252, § 1, effective July 1. L. 2013: (2), (5)(a), and (5)(b) amended, (HB 13-1314), ch. 323, p. 1800, § 16, effective March 1, 2014.

8-2-112. Unlawful to publish notice of boycott.

It is unlawful to print or circulate any notice of boycott, boycott card, sticker, banner, sign, or dodger publishing or declaring that a boycott or ban exists, or has existed or is contemplated against any person, firm, or corporation doing a lawful business, or publish the name of any judicial officer or other public officer upon any notice of boycott, boycott card, sticker, banner, sign, or other similar list because of any lawful act or decision of such official. A person who violates this section commits a petty offense.

Source: L. 05: p. 160, § 2. R.S. 08: § 399. C.L. § 4163. CSA: C. 97, § 91. CRS 53: § 80-4-12. C.R.S. 1963: § 80-11-12. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3139, § 80, effective March 1, 2022.

Cross references: For arbitration to avoid necessity of boycott, see § 8-1-123.

ANNOTATION

This section applies to everyone and is not confined to labor controversies in general or to employees, employers, and labor organizations subject to title 8 in particular. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

8-2-113. Unlawful to intimidate worker - agreement not to compete - prohibition - exceptions - notice - definition.

  1. Legislative intent. The general assembly intends to preserve existing state and federal case law in effect before August 10, 2022, that:
    1. Defines what counts as a covenant not to compete that is prohibited by this section; and
    2. Specifies the extent to which a covenant not to compete for the protection of trade secrets must be tailored in scope in order to be enforceable under this section.

    1. (1.5) (a) It is unlawful to use force, threats, or other means of intimidation to prevent any person from engaging in any lawful occupation at any place the person sees fit.
    2. A person who violates this subsection (1.5) commits a class 2 misdemeanor, as defined in section 18-1.3-501.
    1. Except as provided in subsections (2)(b) and (3) of this section, any covenant not to compete that restricts the right of any person to receive compensation for performance of labor for any employer is void.
    2. This subsection (2) does not apply to a covenant not to compete governing a person who, at the time the covenant not to compete is entered into and at the time it is enforced, earns an amount of annualized cash compensation equivalent to or greater than the threshold amount for highly compensated workers, if the covenant not to compete is for the protection of trade secrets and is no broader than is reasonably necessary to protect the employer's legitimate interest in protecting trade secrets.
    3. As used in this subsection (2):
      1. "Annualized cash compensation" means:
        1. The amount of the gross salary or wage amount, the fee amount, or the other compensation amount for the full year, if the person was employed or engaged for a full year;
        2. The compensation that the person would have earned, based on the worker's gross salary or wage amount, fee, or other compensation if the worker was not employed or engaged for a full year.
      2. "Threshold amount for highly compensated workers" means the greater of the threshold amount for highly compensated workers as determined by the division of labor standards and statistics in the department of labor and employment:
        1. As of August 10, 2022; or
        2. At the time the covenant not to compete is executed by the parties.
      3. In determining whether a worker's cash compensation exceeds the threshold amount, where the worker has been employed for less than a calendar year, the worker's cash compensation exceeds the threshold amount if the worker would reasonably expect to earn more than the threshold amount during a calendar year of employment.
    4. This subsection (2) does not apply to a covenant not to solicit customers governing a person who, at the time the covenant is entered into and at the time it is enforced, earns an amount of annualized cash compensation equivalent to or greater than sixty percent of the threshold amount for highly compensated workers if the nonsolicitation covenant is no broader than reasonably necessary to protect the employer's legitimate interest in protecting trade secrets.
  3. The following covenants are not prohibited by subsection (2) of this section:
    1. A provision providing for an employer's recovery of the expense of educating and training a worker where the training is distinct from normal, on-the-job training, the employer's recovery is limited to the reasonable costs of the training and decreases over the course of the two years subsequent to the training proportionately based on the number of months that have passed since the completion of the training, and the employer recovering for the costs of the training would not violate the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq., or article 4 of this title 8;
    2. A reasonable confidentiality provision relevant to the employer's business that does not prohibit disclosure of information that arises from the worker's general training, knowledge, skill, or experience, whether gained on the job or otherwise, information that is readily ascertainable to the public, or information that a worker otherwise has a right to disclose as legally protected conduct;
    3. A covenant for the purchase and sale of a business or the assets of a business; or
    4. A provision requiring the repayment of a scholarship provided to an individual working in an apprenticeship if the individual fails to comply with the conditions of the scholarship agreement.
    1. Any covenant not to compete that is otherwise permissible under subsection (2) or (3) of this section is void unless notice of the covenant not to compete and the terms of the covenant not to compete are provided to:
      1. A prospective worker before the worker accepts the employer's offer of employment; or
      2. A current worker at least fourteen days before the earlier of:
        1. The effective date of the covenant; or
        2. The effective date of any additional compensation or change in the terms or conditions of employment that provides consideration for the covenant.
    2. An employer shall provide the notice required in subsection (4)(a) of this section in a separate document from any other covenants between the worker and employer and in clear and conspicuous terms in the language in which the worker and employer communicate about the worker's performance. The notice must be signed by the worker.
      1. A worker may request an additional copy of the covenant not to compete required by this subsection (4) once each calendar year.
      2. An employer is not required under this subsection (4) to provide the worker with an additional copy of the covenant not to compete more than once during a calendar year.
    4. An employer satisfies the notice requirement of this subsection (4) when the notice:
      1. Is provided with a copy of the agreement containing the covenant not to compete;
      2. Identifies the agreement by name and states that the agreement contains a covenant not to compete that could restrict the workers' options for subsequent employment following their separation from the employer; and
      3. Directs the worker to the specific sections or paragraphs of the agreement that contain the covenant not to compete.
    1. Any covenant not to compete provision of an employment, partnership, or corporate agreement between physicians that restricts the right of a physician to practice medicine, as defined in section 12-240-107, upon termination of the agreement, is void; except that all other provisions of the agreement enforceable at law, including provisions that require the payment of damages in an amount that is reasonably related to the injury suffered by reason of termination of the agreement, are enforceable. Provisions of a covenant not to compete that require the payment of damages upon termination of the agreement may include damages related to competition.
    2. Notwithstanding subsection (5)(a) of this section, after termination of an agreement described in subsection (5)(a) of this section, a physician may disclose his or her continuing practice of medicine and new professional contact information to any patient with a rare disorder, as defined in accordance with criteria developed by the National Organization for Rare Disorders, Inc., or a successor organization, to whom the physician was providing consultation or treatment before termination of the agreement. Neither the physician nor the physician's employer, if any, is liable to any party to the prior agreement for damages alleged to have resulted from the disclosure or from the physician's treatment of the patient after termination of the prior agreement.
  6. A covenant not to compete that applies to a worker who, at the time of termination of employment, primarily resided or worked in Colorado may not require the worker to adjudicate the enforceability of the covenant outside of Colorado. Notwithstanding any contractual provision to the contrary, Colorado law governs the enforceability of a covenant not to compete for a worker who, at the time of termination of employment, primarily resided and worked in Colorado.
  7. A worker who is a party to a covenant not to compete, or a subsequent employer that has hired or is considering hiring the worker, may seek a declaratory judgment from a court of competent jurisdiction or an arbitrator that the covenant not to compete is unenforceable.
    1. An employer shall not enter into, present to a worker or prospective worker as a term of employment, or attempt to enforce any covenant not to compete that is void under this section.
    2. An employer that violates subsection (8)(a) of this section is liable for actual damages and a penalty of five thousand dollars per worker or prospective worker harmed by the conduct. The attorney general and any worker or prospective worker harmed by an employer's conduct may bring an action for injunctive relief and to recover penalties. In addition to injunctive relief and the penalty allowed in this subsection (8)(b), a worker or prospective worker may recover actual damages, reasonable costs, and attorney fees in any private action brought under this section.
    3. In any action brought under this subsection (8), if the employer shows that the act or omission giving rise to such action was in good faith and that the employer had reasonable grounds for believing that the employer's act or omission was not a violation of this section, the court may, in its sound discretion, award the worker or workers no penalty or award a penalty of any amount not to exceed the amount specified in subsection (8)(b) of this section.

Source: L. 05: p. 161, § 3. R.S. 08: § 400. C.L. § 4164. CSA: C. 97, § 92. CRS 53: § 80-4-13. C.R.S. 1963: § 80-11-13. L. 73: p. 940, § 1. L. 82: (3) added, p. 232, § 1, effective April 6. L. 2018: (3) amended, (SB 18-082), ch. 87, p. 689, § 1, effective April 2. L. 2019: (3)(a) amended, (HB 19-1172), ch. 136, p. 1646, § 18, effective October 1. L. 2021: (4) added, (SB 21-271), ch. 462, p. 3139, § 81, effective March 1, 2022. L. 2022: Entire section amended, (HB 22-1317), ch. 441, p. 3095, § 1, effective August 10.

Editor's note: Section 2(2) of chapter 441 (HB 22-1317), Session Laws of Colorado 2022, provides that the act changing this section applies to covenants not to compete entered into on or renewed on or after August 10, 2022.

Cross references: For the "Uniform Trade Secrets Act", see article 74 of title 7.

ANNOTATION

Law reviews. For article, "Noncompetition C ovenants in C olorado: A Statutory Solution?", see 52 Den. L.J. 499 (1975). For article discussing remedies available in an employee's breach of a confidential relationship with an employer regarding trade secrets, see 48 U. Colo. L. Rev. 189 (1977). For article, "Protecting Technical Information: The Role of the General Practitioner", see 12 Colo. Law. 1215 (1983). For article, "Drafting Noncompete Covenants: Statutory and Common Law Constraints", see 13 Colo. Law. 757 (1984). For article, "Drafting a Noncompetition Clause for the Colorado Contract", see 20 Colo. Law. 703 (1991). For article, "Covenants Not to Compete in the Sale of a Business: Protecting Goodwill", see 26 Colo. Law. 31 (Dec. 1997). For article, "Non-compete by Non-disclosure: The Doctrine of Inevitable Disclosure", see 28 Colo. Law. 73 (Sept. 1999). For article, "The Law of Trade Secrecy and Covenants Not to Compete in Colorado - Part I", see 30 Colo. Law. 7 (April 2001). For article, "The Law of Trade Secrecy and Covenants Not to Compete in Colorado - Part II", see 30 Colo. Law. 5 (May 2001). For article, "Antitrust Scrutiny of Employment Restrictive Covenants", see 43 Colo. Law. 33 (Oct. 2014).

This section is directed at what may be termed unlawful picketing. People v. Harris, 104 Colo. 386, 91 P.2d 989 (1939).

This section is intended to protect employees from noncompetition clauses except in carefully defined circumstances. Colo. Accounting Machs., Inc. v. Mergenthaler, 44 Colo. App. 155, 609 P.2d 1125 (1980); Nat'l Graphics Co. v. Dilley, 681 P.2d 546 (Colo. App. 1984).

Covenants not to compete are contrary to the public policy of Colorado and are void, except for some narrow exceptions such as a covenant in a contract for the purchase and sale of a business. DBA Enter., Inc. v. Findlay, 923 P.2d 298 (Colo. App. 1996).

A covenant that fails to meet one of the exceptions defined in this section is facially void rather than voidable. Management Recruiters of Boulder v. Miller, 762 P.2d 763 (Colo. App. 1988); Harvey Barnett, Inc. v. Shidler, 143 F. Supp. 2d 1247 (D. Colo. 2001); Phoenix Capital, Inc. v. Dowell, 176 P.3d 835 (Colo. App. 2007).

Even if a noncompetition agreement is not void under this section, to be enforceable, the clause must satisfy an established rule of reasonableness as to both duration and geographic scope. Nat'l Graphics Co. v. Dilley, 681 P.2d 546 (Colo. App. 1984); Electrical Distribs., Inc. v. SFR, Inc., 166 F.3d 1074 (10th Cir. 1999).

And this established rule of reasonableness is recognized in the legislative history of this section. Nat'l Graphics Co. v. Dilley, 681 P.2d 546 (Colo. App. 1984).

Broad language of license agreement that would perpetually limit licensee swimming instructors' ability to train other instructors in the widely-known skill of teaching swimming to infants and young children worldwide is an unenforceable covenant not to compete. Harvey Barnett, Inc. v. Shidler, 143 F. Supp. 2d 1247 (D. Colo. 2001).

Noncompetition agreement that is worldwide and perpetual is unduly broad, both as to time and geographic scope, and is thus void. Nutting v. RAM Southwest, Inc., 106 F. Supp. 2d 1121 (D. Colo. 2000).

Noncompetition covenant in contract between dentist and professional corporation was void as against public policy, where the contract provided for the dentist's use of the corporation's facilities but stated that the dentist was not an agent or employee of the corporation for any purpose. Smith v. Sellers, 747 P.2d 15 (Colo. App. 1987).

Noncompetition covenant not validated by trade secret provision. A trade secret provision in an employment agreement does not validate an unrelated restrictive covenant whose sole purpose is to prohibit all competition. Colo. Accounting Machs., Inc. v. Mergenthaler, 44 Colo. App. 155, 609 P.2d 1125 (1980); Dresser Industries, Inc. v. Sandvick, 732 F.2d 783 (10th Cir. 1984).

Employer must establish that a restrictive covenant not to compete is not void under this section before a preliminary injunction will be granted. Porter Industries, Inc. v. Higgins, 680 P.2d 1339 (Colo. App. 1984).

The general assembly never intended "void" in subsection (2) to have a strict technical meaning (either "void ab initio" or "voidable"). Rather, it is intended as an emphatic synonym for "unenforceable"; and a noncompete covenant's enforceability must be judged under the circumstances present at the employee's separation, regardless of whether the noncompete covenant would have been enforceable at some earlier time. DigitalGlobe, Inc. v. Paladino, 269 F. Supp. 3d 1112 (D. Colo. 2017).

Nothing in the statute itself limits its applicability only to covenants not to compete designed to protect buyers, therefore, given appropriate circumstances, a covenant running in favor of a franchiser is an enforceable covenant under the statute. Keller Corp. v. Kelley, 187 P.3d 1133 (Colo. App. 2008).

Injunctive relief is the most common and generally preferred relief for breach of a covenant not to compete; however, the conditional language of a bill of sale and covenant not to compete referenced in the promissory note is the equivalent of a liquidated damage provision, which amounts to a penalty and is therefore not enforceable. DBA Enter., Inc. v. Findlay, 923 P.2d 298 (Colo. App. 1996).

Covenant not to compete extinguished when business ceases to exist. If a covenant not to compete which was binding on the seller of the business were enforced by the buyer after the business had ceased to exist, the covenant would constitute a void and unenforceable restraint of trade. Gibson v. Eberle, 762 P.2d 777 (Colo. App. 1988).

The reasonableness of covenants ancillary to the sale of a business depends on whether the restraint on competition provides fair protection to the buyer's purchase of good will, while imposing restrictions no greater than necessary to protect the value of that good will. Reed Mill & Lumber Co. v. Jensen, 165 P.3d 733 (Colo. App. 2006).

A covenant not to compete ancillary to the sale of a business is unreasonable if its restrictions are greater than necessary to protect legitimate business interests. Reed Mill & Lumber Co. v. Jensen, 165 P.3d 733 (Colo. App. 2006).

Evidence established "sale of business" under subsection (2)(a). Boulder Medical Center v. Moore, 651 P.2d 464 (Colo. App. 1982); King v. PA Consulting Group, Inc., 485 F.3d 577 (10th Cir. 2007).

Under "sale of business" exception, where plain language of covenant prohibited "working" for competitors, case was reversed and remanded to determine whether activities beyond merely loaning money or leasing property to a competitor materially breached the covenant. Nat'l Propane Corp. v. Miller, 18 P.3d 782 (Colo. App. 2000).

"Sale of business" and "management personnel" exceptions applied to covenant required as part of property disposition in dissolution of marriage. In re Fischer, 834 P.2d 270 (Colo. App. 1992).

Test for determining whether a covenant fits within the "trade secrets" exception: (1) Is the restrictive covenant justified at all in light of the facts; and (2) are the specific terms reasonable? Management Recruiters of Boulder v. Miller, 762 P.2d 763 (Colo. App. 1988).

For a covenant not to compete to fit within the trade secret exception of subsection (2), the purpose of the covenant must be the protection of trade secrets, and the covenant must be reasonably limited in scope to the protection of those trade secrets. Gold Messenger, Inc. v. McGuay, 937 P.2d 907 (Colo. App. 1997).

Whether a particular group of employees qualifies under the exception of subsection (2)(d) is an issue of fact. Occusafe, Inc. v. EG&G Rocky Flats, Inc., 54 F.3d 618 (10th Cir. 1995).

The resolution of the issue requires an examination of what the job actually entails, and not just mere job titles. Doubleclick Inc. v. Paikin, 402 F. Supp. 2d 1251 (D. Colo. 2005); Wells Fargo Ins. Servs. USA v. McQuate, 276 F. Supp. 3d 1089 (D. Colo. 2016).

Whether the exception in subsection (2)(d) applies is to be determined as of the time of the employee's departure. Wells Fargo Ins. Servs. USA v. McQuate, 276 F. Supp. 3d 1089 (D. Colo. 2016).

Whether a nonsolicitation clause in a contract fits within the trade secrets exception in subsection (2) is an issue of fact. Saturn Sys., Inc. v. Militare, 252 P.3d 516 (Colo. App. 2011).

A person who conducts or supervises a business is "management personnel". A person who supervises 50 employees in a division with a ten million dollar budget is "management personnel" and therefore falls under the management personnel exception, which is broader than covering merely a few key personnel. DISH Network Corp. v. Altomari, 224 P.3d 362 (Colo. App. 2009).

Management exception to the statutory limit on noncompetition clauses does not apply when an employee does not manage any other employees and there are three levels of management employees above the employee. Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789 (Colo. App. 2001).

The "professional staff to executive and management personnel" exception is limited to those persons who, while qualifying as "professionals" and reporting to managers and executives, primarily serve as key members of the manager's or executive's staff in the implementation of management and executive functions. Phoenix Capital, Inc. v. Dowell, 176 P.3d 835 (Colo. App. 2007).

Invalidity of noncompetition agreement also renders invalid an agreement not to solicit customers of former employer. Agreement not to solicit customers is form of agreement not to compete that has effect of restricting former employee from working in same business for another employer. Phoenix Capital, Inc. v. Dowell, 176 P.3d 835 (Colo. App. 2007).

Colorado has not recognized an employer's right to protect good will created by an employee's relationships with the employer's customers. Reed Mill & Lumber Co. v. Jensen, 165 P.3d 733 (Colo. App. 2006).

Whether industrial hygienists constitute "professional staff to executive and management personnel" is an issue of fact. Occusafe, Inc. v. EG&G Rocky Flats Inc., 54 F.3d 618 (10th Cir. 1995).

Section applies to independent contractors as well as employees. Colo. Supply Co., Inc. v. Stewart, 797 P.2d 1303 (Colo. App. 1990).

Noncompetition provision specifying the amount of damages and setting a fee percentage as liquidated damages in a physician's employment contract violated subsection (3). The contract requirement that the plaintiff pay defendant a percentage of his fees for two years provided for damages that were not "reasonably related to the injury suffered" by the defendant by reason of the termination of the contract with plaintiff. Also, the fee percentage set as liquidated damages in the noncompetition provision was disproportionate to any possible loss incurred by the defendant. Wojtowicz v. Greeley Anesthesia Servs., 961 P.2d 520 (Colo. App. 1997).

Any damages awarded pursuant to a noncompete agreement and subsection (3) must be reasonably related to the injury actually suffered by the defendant and not simply related to an injury prospectively estimated at the time of contract formation. Crocker v. Greater Colo. Anesthesia, P.C., 2018 COA 33, 463 P.3d 860.

Applied in Harrison v. Albright, 40 Colo. App. 227, 577 P.2d 302 (1977); PostNet Int'l Franchise Corp. v. Wu, 521 F. Supp. 3d 1087 (D. Colo. 2021).

8-2-114. Immunity from civil liability for employer disclosing information - employer shall not maintain blacklist - credit lists excepted.

  1. For purposes of this section, "job performance" means:
    1. The suitability of the employee for reemployment;
    2. The employee's work-related skills, abilities, and habits as they may relate to suitability for future employment; and
    3. In the case of a former employee, the reason for the employee's separation.
  2. It is unlawful for any employer to maintain a blacklist, or to notify any other employer that any current or former employee has been blacklisted by such employer, for the purpose of preventing such employee from receiving employment. Sections 8-2-112 to 8-2-114 shall not be construed to prevent any merchant or professional person, or any association thereof, from maintaining or publishing a list concerning the credit or financial responsibility of any person dealing with them on credit.
  3. Any employer who provides information about a current or former employee's job history or job performance to a prospective employer of the current or former employee upon request of the prospective employer or the current or former employee is immune from civil liability and is not liable in civil damages for the disclosure or any consequences of the disclosure. This immunity shall not apply when such employee shows by a preponderance of the evidence both of the following:
    1. The information disclosed by the current or former employer was false; and
    2. The employer providing the information knew or reasonably should have known that the information was false.
  4. This section applies to any employee, agent, or other representative of the current or former employer who is authorized to provide and who provides information in accordance with this section.
  5. Any employer that provides written information to a prospective employer about a current or a former employee shall send, upon the request of such current or former employee, a copy of the information provided to the last-known address of the person who is the subject of the reference. Any person who is the subject of such a reference may obtain a copy of the reference information by appearing at the employer's or former employer's place of business during normal business hours. The employer or former employer may charge a fair and reasonable amount for reproduction costs if multiple copies are requested.
  6. Nothing in this section shall be construed to abrogate or contradict the provisions of part 4 of article 34 of title 24, C.R.S.
  7. A person who violates this section commits a class 2 misdemeanor.

Source: L. 05: p. 161, § 4. R.S. 08: § 401. C.L. § 4165. CSA: C. 97, § 93. CRS 53: § 80-4-14. C.R.S. 1963: § 80-11-14. L. 92: Entire section amended, p. 1806, § 1, effective April 29. L. 99: Entire section R&RE, p. 210, § 1, effective March 31. L. 2021: (2) amended and (7) added, (SB 21-271), ch. 462, p. 3139, § 82, effective March 1, 2022.

ANNOTATION

Law reviews. For article, "State Laws: A Growing Minefield for Employers", see 23 C olo. Law. 1089 (1994).

Section is plain as to limit in its application to particular classes of persons. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

8-2-115. Violation of sections - misdemeanor - repeal. (Repealed)

Source: L. 05: p. 161, § 5. R.S. 08: § 402. C.L. § 4166. CSA: C. 97, § 94. CRS 53: § 80-4-15. C.R.S. 1963: § 80-11-15. L. 2021: (2) added by revision, (SB 21-271), ch. 462, pp. 3139, 3331, §§ 83, 803.

Editor's note: Subsection (2) provided for the repeal of this section, effective March 1, 2022. (See L. 2021, pp. 3139, 3331.)

ANNOTATION

Law reviews. For article, "Some Legal Aspects of the Colorado Coal Strike", see 4 Den. B. Ass'n Rec. 22 (Dec. 1927). For note, "The Right of a Third Party to Picket Under the Colorado Labor Peace Act", see 20 Rocky Mt. L. Rev. 317 (1948). For article, "Picketing -- Free Speech?", see 28 Dicta 61 (1951).

This section makes it a misdemeanor for "any" person, firm or corporation to violate the boycott statute, which applies to all persons and not merely to labor controversies in general or to employees, employers, or labor organizations subject to title 8 in particular. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971).

8-2-116. Age of employee not ground for discharge. (Repealed)

Source: L. 03: p. 307, § 1. R.S. 08: § 3927. C.L. § 4191. CSA: C. 97, § 112. CRS 53: § 80-4-16. C.R.S. 1963: § 80-11-16. L. 86: Entire section repealed, p. 933, § 5, effective May 8.

Cross references: For present provisions concerning age discrimination in employment, see part 4 of article 34 of title 24.

8-2-117. Penalty for violation. (Repealed)

Source: L. 03: p. 308, § 2. R.S. 08: § 3928. C.L. § 4192. CSA: C. 97, § 123. CRS 53: § 80-4-17. C.R.S. 1963: § 80-11-17. L. 86: Entire section repealed, p. 933, § 5, effective May 8.

8-2-118. Cost of medical examination - employer and employee defined.

  1. It is unlawful for any employer, as defined in subsection (2) of this section, to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment, except those records necessary to support the applicant's statements in the application for employment.
  2. "Employer", as used in this section, means an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within the state.
  3. "Employee", as used in this section, means every person who may be permitted, required, or directed by any employer, as defined in subsection (2) of this section, in consideration of direct or indirect gain or profit, to engage in any employment.
  4. Any employer who violates the provisions of this section is liable to a penalty of not more than one hundred dollars for each violation. It is the duty of the director of the division of labor standards and statistics to enforce this section.
    1. The director of the division of labor standards and statistics shall enforce this section as it applies to an individual, a partnership, an association, a corporation, or a legal representative, trustee, receiver, or trustee in bankruptcy doing business in or operating within the state.
    2. The public utilities commission shall enforce this section as it applies to any common carrier by rail, motor, water, air, or express company doing business in or operating within the state.
    3. Nothing in this subsection (5) shall be construed as applying to irrigation ditch and water companies.

Source: L. 57: p. 491, §§ 1-4. CRS 53: § 80-4-18. L. 59: p. 536, § 1. C.R.S. 1963: § 80-11-18. L. 69: p. 615, § 123. L. 2016: (4) and (5)(a) amended, (HB 16-1323), ch. 131, p. 377, § 6, effective August 10.

8-2-119. Awards of back pay - deduction of unemployment compensation.

  1. In any proceeding in this state in which an award of back pay is made, the employer shall pay any such award in full, subject to the provisions of subsection (3) of this section.
  2. The person ordering an award of back pay shall notify the director of the division of unemployment insurance of the award within five days after the date of the order.
  3. If, during the period for which back pay is awarded, the recipient of the award has been receiving unemployment benefits pursuant to the provisions of articles 70 to 82 of this title, the entity ordering the award shall reduce the amount of the award by the amount of benefits the person received, and the employer shall withhold that amount from the award. The employer shall remit the amount withheld from the back pay award to the division of unemployment insurance, and the division shall credit the amount to the unemployment compensation fund. The employer shall remit the withheld amount within ten days after the award of back pay becomes final.

Source: L. 69: p. 666, § 1. C.R.S. 1963: § 80-11-19. L. 76: (2) amended, p. 335, § 1, effective May 10. L. 2012: (2) and (3) amended, (HB 12-1120), ch. 27, p. 104, § 11, effective June 1.

Editor's note: The effective date for amendments to this section by House Bill 12-1120 (chapter 27, Session Laws of Colorado 2012) was changed from August 8, 2012, to June 1, 2012, by House Bill 12S-1002 (First Extraordinary Session, chapter 2, p. 2432, Session Laws of Colorado 2012).

8-2-120. Residency requirements prohibited for public employment - legislative declaration - definitions.

  1. The general assembly hereby finds, determines, and declares that the imposition of residency requirements by public employers works to the detriment of the public health, welfare, and morale as well as to the detriment of the economic well-being of the state. The general assembly further finds, determines, and declares that the right of the individual to work in or for any local government is a matter of statewide concern and accordingly the provisions of this section preempt any provisions of any such local government to the contrary. The general assembly declares that the problem and hardships to the citizens of this state occasioned by the imposition of employee residency requirements far outweigh any gain devolving to the public employer from the imposition of said requirements.
  2. As used in this section, unless the context otherwise requires:
    1. "Employee" means any person who works for a salary or for hourly wages, whether full-time or part-time and whether temporary or permanent. Such term does not include a local government's elected officials or its key appointed officials such as cabinet members, director of public safety, superintendent of schools, fire chief, or police chief and does not include members of a local government's boards or committees if residency requirements are set forth by any ordinance, charter, resolution, or statute of the local government.
    2. "Local government" means a county, city and county, city, municipality, town, school district, local college district, a local improvement and service district, special district, or any other independent local entity having the authority under the general laws of this state to levy taxes or impose assessments.
  3. On and after July 1, 1988, any employee of any local government may at his sole option reside and dwell anywhere such employee chooses, whether within or without the territorial boundaries of the local government, except as provided in paragraph (b) of subsection (4) of this section.
    1. On and after July 1, 1988, no residency requirement may be imposed on any employee by any local government. To the extent that any local government ordinance, charter, resolution, or statute conflicts with this provision, it is hereby preempted by this provision.
    2. Key employees with duties which clearly and demonstrably require them to be close to their place of employment may be subject to reasonable requirements as to the maximum distance the employee's residence may be from the place of work. Such condition may be imposed, after hearing, by ordinance or resolution.

Source: L. 88: Entire section added, p. 365, § 1, effective April 11.

ANNOTATION

Unconstitutional interference with power of home rule municipalities. The residency of municipal employees is a matter of local concern and is therefore governed by charter provision or ordinance of a home rule city; an inconsistent home rule provision preempts this section. City and County of Denver v. State, 788 P.2d 764 (Colo. 1990).

Factors considered in determining whether state statute preempts inconsistent home rule ordinance: (1) Need for statewide uniformity of regulation; (2) impact of municipal regulation on persons living outside municipal limits; (3) history of legislation of particular matter; and (4) commitment in state constitution of a particular matter to state or local regulation. City and County of Denver v. State, 788 P.2d 764 (Colo. 1990).

8-2-121. Document fraud - penalties. (Repealed)

Source: L. 2006: Entire section added, p. 1305, § 1, effective May 30. L. 2008: (2) amended, p. 2145, § 16, effective June 4. L. 2011: Entire section repealed, (SB 11-243), ch. 282, p. 1256, § 1, effective June 2.

8-2-122. Employment verification requirements - audits - fine for fraudulent documents - cash fund created - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Director" means the director of the division.
    2. (Deleted by amendment, L. 2016.)
    3. "Employer" means a person or entity that:
      1. Transacts business in Colorado;
      2. At any time, employs another person to perform services of any nature; and
      3. Has control of the payment of wages for such services or is the officer, agent, or employee of the person or entity having control of the payment of wages.
    4. (Deleted by amendment, L. 2016.)
  2. (Deleted by amendment, L. 2016.)
  3. Upon the request of the director, an employer shall submit documentation to the director that demonstrates that the employer is in compliance with the employment verification requirements specified in 8 U.S.C. sec. 1324a (b). The director or the director's designee may conduct random audits of employers in Colorado to obtain the documentation. When the director has reason to believe that an employer has not complied with the employment verification and examination requirements, the director shall request the employer to submit the documentation.
  4. (Deleted by amendment, L. 2016.)
  5. It is the public policy of Colorado that this section shall be enforced without regard to race, religion, gender, ethnicity, national origin, or disability.
  6. Repealed.

Source: L. 2006, 1st Ex. Sess.: Entire section added, p. 37, § 1, effective July 31. L. 2016: (1)(b) amended, (HB 16-1323), ch. 131, p. 377, § 7, effective August 10; entire section amended, (HB 16-1114), ch. 266, p. 1102, § 2, effective August 10. L. 2020: (6) added, (HB 20-1381), ch. 171, p. 785, § 1, effective June 29.

Editor's note: Subsection (6)(b) provided for the repeal of subsection (6), effective July 1, 2020. (See L. 2020, p. 785.)

Cross references: For the legislative declaration in HB 16-1114, see section 1 of chapter 266, Session Laws of Colorado 2016.

ANNOTATION

Law reviews. For article, "2006 Immigration Legislation in C olorado", see 35 C olo. Law. 79 (Oct. 2006). For article, "Colorado Among Leading States to Enact Immigration Enforcement Laws on Employers", see 38 Colo. Law. 55 (April 2009).

8-2-123. Health-care workers - retaliation prohibited - definitions.

  1. As used in this section:
    1. "Disciplinary action" means any direct or indirect form of discipline or penalty, including, but not limited to, dismissal, demotion, transfer, reassignment, suspension, corrective action, reprimand, admonishment, unsatisfactory or below-standard performance evaluation, reduction in force, withholding of work, changes in work hours, negative reference, creating or tolerating a hostile work environment, or the threat of any such discipline or penalty. "Disciplinary action" shall not include action taken that is related to staffing or patient care needs.
    2. "Good faith report or disclosure" means a report regarding patient safety information or quality of patient care that is made without malice or consideration of personal benefit and that the health-care worker making the report has reasonable cause to believe is true. "Good faith report or disclosure" also includes, with respect to patient care, a report regarding any practice, procedure, action, or failure to act with regard to patient safety that concerns information regarding a generally accepted standard of care; a law, rule, regulation, or declaratory ruling adopted pursuant to law; or compliance with a professional licensure requirement, which report is made without malice or consideration of personal benefit and that the health-care worker making the report has reasonable cause to believe is true.
    3. "Health-care provider" means any health-care facility licensed under section 25-3-101, C.R.S., or any individual who is authorized to practice some component of the healing arts by license, certificate, or registration.
    4. "Health-care worker" means any person certified, registered, or licensed pursuant to article 200, 215, 220, 225, 240, 245, or 255 to 300 of title 12 or certified or licensed pursuant to section 25-3.5-203.
    1. A health-care provider shall not take disciplinary action against a health-care worker in retaliation for making a good faith report or disclosure.
    2. Paragraph (a) of this subsection (2) shall not apply to a health-care worker who discloses information that the worker knows to be false, who discloses information with disregard for the truth or falsity thereof, or who discloses information without fully complying with subsection (3) of this section.
    3. Nothing in this section shall be construed to grant immunity to a health-care worker for his or her own acts of medical negligence, for unprofessional conduct subject to professional review activities authorized by state or federal law, for a breach of a professional licensure requirement, or for a violation of any state or federal law requiring confidentiality of patient information.
  3. When making a good faith report or disclosure regarding patient safety or quality of patient care, a health-care worker shall follow the internal reporting procedures of the health-care provider, to the extent such procedures exist and are provided to the health-care worker in writing, and shall exhaust such procedures prior to pursuing any further reporting or disclosure activity.
  4. Nothing in this section shall prevent a health-care provider from taking disciplinary action against a health-care worker for reasons other than those specified in subsection (2) of this section.
  5. Nothing in this section shall be construed to preempt existing laws, regulations, or rules pertaining to patient care, including professional review proceedings for health professionals or for physicians pursuant to part 2 of article 30 of title 12, or quality and safety standards for a health-care facility licensed pursuant to section 25-3-101.

Source: L. 2007: Entire section added, p. 284, § 2, effective March 29. L. 2019: (1)(d) amended, (SB 19-242), ch. 396, p. 3524, § 4, effective May 31; (1)(d) and (5) amended, (HB 19-1172), ch. 136, p. 1647, § 19, effective October 1.

Editor's note: Amendments to subsection (1)(d) by SB 19-242 and HB 19-1172 were harmonized.

Cross references: For the legislative declaration contained in the 2007 act enacting this section, see section 1 of chapter 67, Session Laws of Colorado 2007.

8-2-124. Electronic verification program - availability - notice to employers - definitions.

  1. As used in this section:
    1. "Department" means the department of labor and employment.
    2. "Electronic verification program" or "e-verify program" means the electronic employment verification program that is authorized in 8 U.S.C. sec. 1324a and jointly administered by the United States department of homeland security and the social security administration, or its successor program.
    3. "Employer" means a person transacting business in Colorado who, at any time, employs another person to perform services of any nature and who has control of the payment of wages for such services or is the officer, agent, or employee of the person having control of the payment of wages.
    4. "Employment eligibility verification form I-9" means the form developed by the United States citizenship and immigration services in the department of homeland security pursuant to 8 U.S.C. sec. 1324a (b).
    5. "Unauthorized alien" has the same meaning as set forth in 8 U.S.C. sec. 1324a (h)(3).
      1. As part of its quarterly electronic publication distributed to employers, the department shall, at a minimum, notify every employer of the federal law against hiring or continuing to employ an unauthorized alien and of the availability of the optional electronic verification program to verify the work eligibility status of new employees. (2) (a) (I) As part of its quarterly electronic publication distributed to employers, the department shall, at a minimum, notify every employer of the federal law against hiring or continuing to employ an unauthorized alien and of the availability of the optional electronic verification program to verify the work eligibility status of new employees.
        1. In notifying employers of the e-verify program pursuant to subparagraph (I) of this paragraph (a), the department shall include language similar to the following:
        2. Additionally, the department shall provide employers information about when, during the hiring process, an employer may lawfully use the e-verify program, specifying that the e-verify program can only be used after an employee is hired and cannot be used to verify the work eligibility status of existing employees. The notice shall also restate the requirements of section 24-34-402, C.R.S., which prohibits employers from engaging in discriminatory or unfair employment practices.
      3. Immediately following the notice required by subparagraph (I) of this paragraph (a), the department shall include in the quarterly electronic publication a link to the portion of the department's website where an employer can access additional information about the federal law, the e-verify program and the requirements for participation in the e-verify program, and the following statement, in bold-faced type in a conspicuous location:
      4. The department shall include the notice and website link required by this paragraph (a) in each quarterly electronic publication distributed to employers on and after August 5, 2008.
    2. The department shall permanently post on its website the statement and information described in subparagraph (III) of paragraph (a) of this subsection (2), as well as a link to the e-verify website available through the internet portal for the United States citizenship and immigration services, or its successor agency.

As with all current employee verification programs, the e-verify program is not one hundred percent accurate, and an employee has recourse available if the employee is legally documented to work in the United States but the employer receives a final notice of nonconfirmation of work eligibility regarding the employee through the e-verify program.

It is unlawful for an employer to:

Hire, recruit, or refer for a fee, for employment in the United States, an alien, knowing the alien is an unauthorized alien; Hire, recruit, or refer for a fee, for employment in the United States, an individual without verifying the employment eligibility status of the individual through completion of the Employment Eligibility Verification Form I-9, or its successor form; Continue to employ an alien in the United States, knowing that the alien is or has become an unauthorized alien; or While using the e-verify program, refuse to hire, discharge, promote, or demote a person, harass a person during the course of employment, or discriminate against a person in matters of compensation, on the basis of the person's disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry, pursuant to section 24-34-402, C.R.S. For more specific information regarding the e-verify program and its requirements and use, employers should consult 8 U.S.C. sec. 1324a.

Source: L. 2008: Entire section added, p. 894, § 1, effective August 5.

8-2-125. Identification of workers engaged in off-site work - permissible forms of identification - exceptions - definitions.

    1. When an employer dispatches an employee to an off-site premises to perform work on behalf of the employer for a customer located at the off-site premises, the employee may provide an employer-issued identification card to the custodian of the off-site premises in lieu of a government-issued identification card for purposes of verifying the identity of the employee. Except as provided in paragraph (c) of this subsection (1), the custodian of the off-site premises shall not require the employee to surrender his or her government-issued identification card to the custodian or retain the employee's government-issued identification card while the employee is physically present on the off-site premises engaged in the performance of work on behalf of the employer.
    2. If the employee has an employer-issued identification card, the custodian may require the employee to surrender his or her employer-issued identification card for purposes of verifying the employee's identity, and the custodian may hold the employer-issued identification card at all times while the employee is present on the off-site premises.
    3. Notwithstanding the prohibition in paragraph (a) of this subsection (1), if the employee does not surrender an employer-issued identification card, the custodian may require the employee to surrender the employee's government-issued identification card to verify the employee's identity, and the custodian may hold the government-issued identification card at all times while the employee is present on the off-site premises.
    4. If the employee provides his or her employer-issued identification card to the custodian pursuant to paragraph (b) of this subsection (1), the custodian may require the employee to allow the custodian to examine a secondary form of identification containing the employee's photograph, including a government-issued identification card.
  2. This section does not apply to a person who enters into a defense contract with the federal government pursuant to the national industrial security program, or its successor program, under which the person is contractually obligated to verify identification using a government-issued identification card.
  3. As used in this section, unless the context otherwise requires:
    1. "Custodian" means the person who is authorized to provide or restrict access to the off-site premises, including security personnel for a commercial building or multi-residential property.
    2. "Employer-issued identification card" means an identification card issued by an employer to an employee that contains, at a minimum, the name of the employer and the employee's name and photograph.
    3. "Government-issued identification card" means a state-issued driver's license or identification card containing the person's photograph, an identification card or passport issued by the federal government containing the person's photograph, a Native American tribal document identifying the person and containing the person's photograph, or any other form of identification issued by the federal or a state government that contains the person's photograph and identifying information.
    4. "Off-site premises" means a building or property that is not owned, leased, operated, or otherwise under the control of the employer of the employee who is dispatched to the premises, including:
      1. A commercial building, other than a federal, state, or local government building; or
      2. A multi-residential property.

Source: L. 2011: Entire section added, (SB 11-179), ch. 185, p. 709, § 1, effective July 1.

8-2-126. Employer use of consumer credit information - violation - short title - definitions.

  1. This section shall be known and may be cited as the "Employment Opportunity Act".
  2. As used in this section:
    1. "Adverse action" means:
      1. For an applicant for employment, denial of employment; and
      2. For an employee, demotion, reassignment to a lower-ranked position or to a position with a lower level of compensation, decrease in compensation level, denial of promotion, or termination of employment; or
      3. Any other decision for employment purposes that adversely affects an employee or applicant.
    2. "Consumer credit information" means a written, oral, or other communication of information bearing on a consumer's creditworthiness, credit standing, credit capacity, or credit history. "Consumer credit information" includes a credit score but does not include the address, name, or date of birth of an employee associated with a social security number.
    3. "Credit score" means an attempted numerical quantification of a person's creditworthiness or credit history.
    4. "Employee" means every person who may be permitted, required, or directed by any employer in consideration of direct or indirect gain or profit, to engage in any employment and includes an applicant for employment.
    5. "Employer" has the meaning set forth in section 8-1-101 and includes a prospective employer; except that "employer" does not include any state or local law enforcement agency.
    6. "Employment purposes" means evaluating a person for employment, hiring, promotion, demotion, reassignment, adjustment in compensation level, or retention as an employee.
    7. "Substantially related to the employee's current or potential job" means the information contained in a credit report is related to the position for which the employee who is the subject of the report is being evaluated because the position:
      1. Constitutes executive or management personnel or officers or employees who constitute professional staff to executive and management personnel, and the position involves one or more of the following:
        1. Setting the direction or control of a business, division, unit, or an agency of a business;
        2. A fiduciary responsibility to the employer;
        3. Access to customers', employees', or the employer's personal or financial information other than information customarily provided in a retail transaction; or
        4. The authority to issue payments, collect debts, or enter into contracts;
      2. Involves contracts with defense, intelligence, national security, or space agencies of the federal government; or
      3. Is with a bank or financial institution.
    1. An employer shall not use consumer credit information for employment purposes unless the information is substantially related to the employee's current or potential job. An employer or employer's agent, representative, or designee shall not require an employee to consent to a request for a credit report that contains information about the employee's credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers as a condition of employment unless:

      (I) The employer is a bank or financial institution;

      (II) The report is required by law; or

      (III) The report is substantially related to the employee's current or potential job and the employer has a bona fide purpose for requesting or using information in the credit report that is substantially related to the employee's current or potential job and is disclosed in writing to the employee.

    2. When consumer credit information is substantially related to the employee's current or potential job, an employer may inquire further of the employee to give him or her the opportunity to explain any unusual or mitigating circumstances where the consumer credit information may not reflect money management skills but is rather attributable to some other factor, including a layoff, error in the credit information, act of identity theft, medical expense, military separation, death, divorce, or separation in the employee's family, student debt, or a lack of credit history.
  4. If an employer relies, in whole or in part, on consumer credit information to take adverse action regarding the employee whose information was obtained, the employer shall disclose that fact, and the particular information upon which the employer relies, to the employee. The employer shall make the disclosure required under this subsection (4) to an employee in writing or to an applicant using the same medium in which the application was made.
  5. A person who is injured by a violation of this section may file a complaint with the division of labor standards and statistics, upon which the division of labor standards and statistics shall promptly investigate and issue findings within thirty days after a hearing and may award civil penalties not to exceed two thousand five hundred dollars to a prevailing party in an action brought under this subsection (5).
  6. The director of the division of labor standards and statistics in the department of labor and employment shall enforce this section.
  7. Nothing in this section imposes any liability on a person, including a consumer reporting agency, as that term is defined in section 5-18-103 (4), for providing an employer with consumer credit information.

Source: L. 2013: Entire section added (SB 13-018), ch. 125, p. 420, § 1, effective July 1. L. 2014: (2)(g)(I)(D) and (2)(g)(II) amended and (2)(g)(III) added, (SB 14-102), ch. 92, p. 342, § 1, effective March 27. L. 2016: (5) and (6) amended, (HB 16-1323), ch. 131, p. 377, § 8, effective August 10. L. 2017: (7) amended, (HB 17-1238), ch. 260, p. 1172, § 14, effective August 9.

8-2-127. Prohibitions of employer - requiring access to personal electronic communication devices - definitions - rules.

  1. As used in this section:
    1. "Applicant" means an applicant for employment.
    2. "Electronic communications device" means a device that uses electronic signals to create, transmit, and receive information, including computers, telephones, personal digital assistants, and other similar devices.
    3. "Employer" means a person engaged in a business, industry, profession, trade, or other enterprise in the state or a unit of state or local government. "Employer" includes an agent, a representative, or a designee of the employer. "Employer" does not include the department of corrections, county corrections departments, or any state or local law enforcement agency.
    1. An employer may not suggest, request, or require that an employee or applicant disclose, or cause an employee or applicant to disclose, any username, password, or other means for accessing the employee's or applicant's personal account or service through the employee's or applicant's personal electronic communications device. An employer shall not compel an employee or applicant to add anyone, including the employer or his or her agent, to the employee's or applicant's list of contacts associated with a social media account or require, request, suggest, or cause an employee or applicant to change privacy settings associated with a social networking account.
    2. Paragraph (a) of this subsection (2) does not prohibit an employer from requiring an employee to disclose any username, password, or other means for accessing nonpersonal accounts or services that provide access to the employer's internal computer or information systems.
  3. An employer shall not:
    1. Discharge, discipline, or otherwise penalize or threaten to discharge, discipline, or otherwise penalize an employee for an employee's refusal to disclose any information specified in paragraph (a) of subsection (2) of this section or refusal to add the employer to the list of the employee's contacts or to change the privacy settings associated with a social media account; or
    2. Fail or refuse to hire an applicant because the applicant refuses to disclose any information specified in paragraph (a) of subsection (2) of this section or refuses to add the employer to the applicant's list of contacts or to change the privacy settings associated with a social media account.
  4. This section does not prevent an employer from:
    1. Conducting an investigation to ensure compliance with applicable securities or financial law or regulatory requirements based on the receipt of information about the use of a personal website, internet website, web-based account, or similar account by an employee for business purposes; or
    2. Investigating an employee's electronic communications based on the receipt of information about the unauthorized downloading of an employer's proprietary information or financial data to a personal website, internet website, web-based account, or similar account by an employee.
  5. A person who is injured by a violation of this section may file a complaint with the department of labor and employment. The department shall investigate the complaint and issue findings thirty days after a hearing. The department may promulgate rules regarding penalties that include a fine of up to one thousand dollars for the first offense and a fine not to exceed five thousand dollars for each subsequent offense.
  6. Nothing in this section prohibits an employer from enforcing existing personnel policies that do not conflict with this section.
  7. Nothing in this section permits an employee to disclose information that is confidential under federal or state law or pursuant to a contract agreement between the employer and the employee.

Source: L. 2013: Entire section added, (HB 13-1046), ch. 195, p. 795, § 1, effective May 11.

8-2-128. Prohibitions of employer - requiring social security number - exceptions.

    1. An entity with a board of directors, including any advisory board, shall not require a member of the board of directors who is not paid for serving on the board, except for occasional reimbursement of incidental expenses of serving on the board, to disclose the member's social security number to the entity in order to serve as a member of the board.
    2. Notwithstanding paragraph (a) of this subsection (1), a current or prospective board member may be required to disclose his or her social security number:
      1. To an entity that is required by law, rule, or a government or accreditation organization's recommended program of legal compliance to require a member of its board of directors to provide a social security number to use to check any governmental background check database or to reimburse a member for expenses incurred in the actual performance of his or her duties;
      2. If the board member would directly serve a clientele that includes minors, the elderly, victims of abuse, persons with developmental disabilities, or other vulnerable individuals and that has an established policy of using a professional employment screening service to conduct background checks, utilizing social security numbers, to screen its personnel, board members, or volunteers; or
      3. If the board member would be authorized to sign checks or engage in other transactions involving the entity's assets or accounts and the financial institution holding those assets or accounts requires a social security number to verify the identity of persons so authorized.
    3. An entity that requires an individual to provide his or her social security number for one of the reasons listed in paragraph (b) of this subsection (1) shall state the reason and specify what uses will be made of the individual's social security number.
  2. It is unlawful for the state or any local government to deny an individual any right, benefit, or privilege provided by law that would violate the federal "Privacy Act of 1974", Pub.L. 93-579, sec. 7, because of the individual's refusal to disclose his or her social security number unless federal law, state law or rule, or a rule, order, or directive of a court requires such disclosure. The state or any local government that requests an individual to disclose his or her social security number when the disclosure is not required by federal or state law shall inform the individual whether that disclosure is mandatory or voluntary, by what statutory or other authority the social security number is solicited, and what uses will be made of the individual's social security number.

Source: L. 2014: Entire section added, (HB 14-1141), ch. 127, p. 450, § 1, effective August 6.

8-2-129. Access to personnel files and records - definitions - exemptions.

  1. Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect and obtain a copy of any part of his or her own personnel file or files at the employer's office and at a time convenient to both the employer and the employee. A former employee may make one inspection of his or her personnel file after termination of employment. An employer may restrict the employee's or former employee's access to his or her files to be only in the presence of a person responsible for managing personnel data on behalf of the employer or another employee designated by the employer. The employer may require the employee or former employee to pay the reasonable cost of duplication of documents.
  2. As used in this section, unless the context otherwise requires:
    1. "Employee" does not include a person employed by an entity subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S.
    2. "Employer" does not include any entity subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S.
    3. "Personnel file" means the personnel records of an employee, in the manner maintained by the employer and using reasonable efforts by the employer to collect, that are used or have been used to determine the employee's qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action. "Personnel file" does not include documents or records required to be placed or maintained in a separate file from the regular personnel file by federal or state law or rule; documents or records pertaining to confidential reports from previous employers of the employee; or an active criminal investigation, an active disciplinary investigation by the employer, or an active investigation by a regulatory agency. "Personnel file" also does not include any information in a document or record that identifies any person who made a confidential accusation, as determined by the employer, against the employee who makes a request under subsection (1) of this section.
  3. Nothing in this section:
    1. Creates or authorizes a private cause of action by a person aggrieved by a violation of this section;
    2. Requires an employer to create, maintain, or retain a personnel file on an employee or former employee; or
    3. Requires an employer to retain any documents that are or were contained in an employee's or former employee's personnel file for any specified period of time.
  4. This section does not apply to a financial institution chartered and supervised under state or federal law, including without limitation:
    1. A bank;
    2. A trust company;
    3. A savings institution; and
    4. A credit union.

Source: L. 2016: Entire section added, (HB 16-1432), ch. 311, p. 1253, § 2, effective January 1, 2017.

Cross references: For the legislative declaration in HB 16-1432, see section 1 of chapter 311, Session Laws of Colorado 2016.

8-2-130. Criminal history - limits on advertisements and applications - exceptions - enforcement - rules - short title - definitions.

  1. Short title. The short title of this section is the "Colorado Chance to Compete Act".
  2. Definitions. As used in this section:
    1. "Criminal history" means the record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state, or local level.
    2. "Department" means the department of labor and employment.
      1. "Employer" means a person that regularly engages the services of individuals to perform services of any nature. "Employer" includes:
        1. An agent, representative, or designee of an employer; and
        2. An employment agency, as defined in section 24-34-401 (4).
      2. "Employer" does not include the state, a local government, or a quasi-governmental entity or political subdivision of the state.
  3. Criminal history information - limits on advertisements and applications - permissible uses.
    1. On and after September 1, 2019, an employer with eleven or more employees, and on and after September 1, 2021, all employers, shall not:
      1. State in an advertisement for an employment position that a person with a criminal history may not apply for the position;
      2. State on any form of application, including electronic applications, for an employment position that a person with a criminal history may not apply for the position; or
      3. Inquire into, or require disclosure of, an applicant's criminal history on an initial written or electronic application form.
    2. An employer may obtain the publicly available criminal background report of an applicant at any time.
  4. Exceptions. This section does not apply to a position being offered or advertised if:
    1. Federal, state, or local law or regulation prohibits employing for that position a person with a specific criminal history;
    2. The position is designated by the employer to participate in a federal, state, or local government program to encourage the employment of people with criminal histories; or
    3. The employer is required by federal, state, or local law or regulation to conduct a criminal history record check for that position, regardless of whether the position is for an employee or an independent contractor.
  5. Enforcement - notice and records retention rules.
    1. This section does not create or authorize a private cause of action by a person aggrieved by a violation of this section and does not create a protected class under section 24-34-402. The penalties set forth in this subsection (5) are the sole remedy for a violation of this section. The issuance of a warning, order, or penalty for a violation of this section is not evidence of a violation of part 4 of article 34 of title 24.
    2. A person who is aggrieved by a violation of this section may file a complaint with the department. If the department receives a complaint within twelve months after the act that is alleged to violate this section occurred, the department shall investigate the complaint unless the department determines that the complaint is without merit.
    3. An employer that violates this section is liable for one of the following penalties:
      1. For the first violation, a warning and an order requiring compliance within thirty days;
      2. For the second violation, an order requiring compliance within thirty days and a civil penalty not to exceed one thousand dollars; or
      3. For a third or subsequent violation, an order requiring compliance within thirty days and a civil penalty not to exceed two thousand five hundred dollars.
    4. An employer is not subject to penalties for a second or subsequent violation under subsection (5)(c) of this section unless the employer:
      1. Failed to comply with an order requiring compliance within thirty days after the date of the order; or
      2. Complied with an order requiring compliance within thirty days but then committed a violation of this section more than thirty days after the issuance of the order.
    5. The department shall adopt rules regarding procedures for handling complaints filed against employers alleging a violation of this section, including:
      1. Requirements for providing notice to an employer alleged to have violated this section; and
      2. Requirements for retaining and maintaining relevant employment records during a pending investigation.

Source: L. 2019: Entire section added, (HB 19-1025), ch. 284, p. 2647, § 2, effective August 2.

Cross references: For the legislative declaration in HB 19-1025, see section 1 of chapter 284, Session Laws of Colorado 2019.

PART 2 EMPLOYER'S LIABILITY

Editor's note: In the original Volume 3, Colorado Revised Statutes 1973, this part 2 was included under article 42 of the "Workmen's Compensation Act of Colorado". It was moved to this article in 1976 for correct location since it was not enacted by the General Assembly as a part of the "Workmen's Compensation Act of Colorado" (see chapter 113, p. 294, Session Laws of Colorado 1911, and chapter 210, p. 700, Session Laws of Colorado 1919, and article 5 of chapter 80 and article 1 of chapter 81, C.R.S. 1963, prior to the recodification of the statutes in 1973).

8-2-201. Damages - fellow servant rule abolished - limitation on admission of criminal history.

  1. Every corporation or individual who employs agents, servants, or employees, such agents, servants, or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, servant, or employee resulting from the carelessness, omission of duty, or negligence of such employer, or which may have resulted from the carelessness, omission of duty, or negligence of any other agent, servant, or employee of the employer, in the same manner and to the same extent as if the carelessness, omission of duty, or negligence causing the injury or death was that of the employer.
    1. Information regarding the criminal history of an employee or former employee may not be introduced as evidence in a civil action against an employer or its employees or agents that is based on the conduct of the employee or former employee if:
      1. The nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action; or
      2. Before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or
      3. The record is of an arrest or charge that did not result in a criminal conviction; or
      4. The employee or former employee received a deferred judgment at sentence and the deferred judgment was not revoked.
    2. This subsection (2) does not supersede any statutory requirement to conduct a criminal history background investigation or consider criminal history records in hiring for particular types of employment.

Source: L. 11: p. 294, § 1. C.L. § 4167. CSA: C. 97, § 95. CRS 53: § 80-6-1. C.R.S. 1963: § 80-5-1. L. 2010: Entire section amended, (HB 10-1023), ch. 42, p. 167, § 2, effective August 11.

Cross references: (1) For negligence of a fellow servant being no defense under the "Workers' Compensation Act of Colorado", see § 8-41-101; for damages for wrongful death, see article 21 of title 13.

(2) For the legislative declaration in the 2010 act amending this section, see section 1 of chapter 42, Session Laws of Colorado 2010.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Torts", see 35 Dicta 53 (1958).

Annotator's note. Cases decided prior to the earliest source of § 8-2-201 have been included in the annotations to this section.

At common law, a master is not responsible for negligence of fellow servant. Portland Gold Mining Co. v. Duke, 164 F. 180 (8th Cir. 1908).

But under this section the master is liable to a servant for the neglect of a fellow servant, to the same extent as for his own neglects. Portland Gold Mining Co. v. Duke, 191 F. 692 (8th Cir. 1911); Kett v. Colo. & S. Ry., 58 Colo. 392, 146 P. 245 (1915); Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

For this section and §§ 8-2-202 through 8-2-204 give a right of action in derogation of the common law, and supersede it to the extent necessary to give full force and effect thereto. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949); Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

But not available remedy under workmen's compensation. A workmen's compensation claimant cannot rely upon the provisions of §§ 8-2-201 through 8-2-205 as providing an available remedy excepted from abolition by the workmen's compensation act in § 8-42-102, even though those sections were mistakenly placed within the scope of the latter section by the 1973 revisor. Ryan v. Centennial Race Track, Inc., 196 Colo. 30, 580 P.2d 794 (1978).

The purpose and effect of this section is not only to abolish the fellow servant doctrine, but also to create in the employee or his survivors a statutory action for the employer's negligence within the time specified therein. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949); Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

And this section is constitutional. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Big Kanawha Leasing Co. v. Jones, 45 Colo. 381, 102 P. 171 (1909); Colo. & S. Ry. v. Davis, 23 Colo. App. 41, 127 P. 249 (1912).

Because this section is not contrary to the due process clause of the constitution. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Rio Grande Sampling Co. v. Catlin, 40 Colo. 450, 94 P. 323 (1907); Colo. & S. Ry. v. Davis, 21 Colo. App. 1, 120 P. 1048, rev'd on other grounds, 23 Colo. App. 41, 127 P. 249 (1912).

Even though the servant is not required to give notice of the injury. Lange v. Union P. R. R., 126 F. 338 (8th Cir. 1903), cert. denied, 193 U.S. 671, 24 S. Ct. 853, 48 L. Ed. 841 (1904); Carlock v. Denver & R. G. R. R., 55 Colo. 146, 133 P. 1103 (1913); Kett v. Colo. & S. Ry., 58 Colo. 392, 146 P. 245 (1915).

Scope of employment may be enlarged by custom known to master. The servant's scope of employment may be enlarged by a practice sufficiently uniform, open, and long-established, to prove a custom, and knowledge of which is brought home to the master. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236, 99 P. 63 (1908).

And knowledge of foreman is knowledge of master. Knowledge of the foreman of a mine, as to the usage and practice of those working under him, is the knowledge of the mine owner. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236, 99 P. 63 (1908).

Applied in Northwestern Eng'r Co. v. Rooks, 166 Colo. 297, 443 P.2d 977 (1968).

II. NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, AND ASSUMPTION OF RISK.

The test of whether a master was negligent is whether his conduct was that of an ordinarily prudent man. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

Master liable for defective appliance causing accident where defect was unknown to servant. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

An employee is generally excusable for obeying orders in and about his employer's business when such orders are given by one in authority over him as a representative of his employer, unless the danger incurred by such obedience is so manifest that a prudent person would not obey even under the penalty of being discharged. Colo. M. Ry. v. O'Brien, 16 Colo. 219, 27 P. 701 (1891); Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

And miner is not negligent in failing to anticipate that experienced fellow miner will throw burning fuse toward open can of powder. Rapson Coal Mining Co. v. Micheli, 62 Colo. 330, 164 P. 311 (1916).

Thus, the doctrine of assumption of risk as to the negligence of a fellow servant has no place under this section. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Kett v. Colo. & S. Ry., 58 Colo. 392, 146 P. 245 (1915).

III. ACTIONS.
A. In General.

Rescission of release given without consideration is not prerequisite to action. Where, in an action for damages for the death of an employee, defendant pleads a release, and plaintiff pleads that it was given without consideration and the jury so found, defendant cannot object that plaintiff cannot maintain the action without first rescinding the release and tendering a return of the consideration received, as there was neither a contract of release to rescind nor any consideration received by the plaintiff for the alleged release which she could tender back. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906).

B. Complaint.

Election not required between counts alleging failure to furnish safe place to work and negligence of fellow servant. Cramer v. Oppenstein, 16 Colo. 504, 27 P. 716 (1891); Manders v. Craft, 3 Colo. App. 236, 32 P. 836 (1893); Leonard v. Roberts, 20 Colo. 88, 36 P. 880 (1894); Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906).

Allegations that pit was negligently left uncovered held sufficient. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

For the sufficiency of allegation of failure to furnish safe appliances, see Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301, 73 P. 39 (1903); Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

For the failure to allege name of negligent fellow servant, see Denver & R. G. R. R. v. Vitello, 21 Colo. App. 51, 121 P. 112 (1912).

C. Burden of Proof.

Defendant alleging contributory negligence has burden of proof. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236, 99 P. 63 (1908).

Likewise, master alleging negligent fellow servant was acting outside scope of employment. Where, in an action against the master for the death of a servant attributed to negligence of a fellow servant, there is a plea that the offending servant was acting without the scope of employment, the master has the burden of proof; and if the negligence of two working together occasioned the accident, and one of them was acting outside his employment, the defendant must go further and prove that the other did not materially participate in the negligent act. Big Five Tunnel Ore Reduction & Transp. Co. v. Johnson, 44 Colo. 236, 99 P. 63 (1908).

D. Reference to Insurance.

Asking jurors whether they are interested in insurance company is not error. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906).

But statement to juror that suggests insurance company is real party in interest justifies reversal. Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).

Unless great weight of evidence favors plaintiff. Tanner v. Harper, 32 Colo. 156, 75 P. 404 (1904); Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).

But comment by counsel on custom of companies to carry insurance is error. Coe v. Van Why, 33 Colo. 315, 80 P. 894 (1905); Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138 (1914).

E. Questions of Law and Fact.

Whether a servant is acting within the scope of his authority is generally a question of fact for the jury under proper instructions, and not a question of law for the court. Ward v. Teller Reservoir & Irrigation Co., 60 Colo. 47, 153 P. 219 (1915); Rapson Coal Mining Co. v. Micheli, 62 Colo. 330, 164 P. 311 (1916).

Likewise, question of servant's contributory negligence is for the jury except in the clearest cases, where the facts are undisputed, and where all intelligent men can draw but one inference, when the question of contributory negligence is for the court, and especially is this true when the measure of duty is ordinary and reasonable care, as in such cases the standard duty is variable. Vindicator Consol. Gold Mining Co. v. Firstbrook, 36 Colo. 498, 86 P. 313 (1906); Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460 (1912); Kett v. Colo. & S. Ry., 58 Colo. 392, 146 P. 245 (1915).

And question of fact for jury as to whose duty it is to keep appliances in repair. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

But where there is no room for two opinions as to master's negligence, question is a matter of law, and court may direct a verdict. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

F. Instructions.

Instructions must be considered as a whole. And where, in an action by servant against master for negligence in the matter of appliances, the duty of the master is properly and clearly stated in the charge, as that of reasonable care only, objection made to a subsequent passage in which it is declared that the master is liable if the appliances were not of such character as a reasonably prudent person would consider safe, was held to be without merit. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

Instructions will not be reviewed which trial court was not given opportunity to correct. Where objection interposed was general, on the subject of damages, it does not avail as against an instruction which contains two or more independent and distinct propositions of law, some of which are right, because it fails to point out that which is incorrect from that which is correct. Beals v. Cone, 27 Colo. 473, 62 P. 948 (1900), appeal dismissed, 188 U.S. 184, 23 S. Ct. 275, 47 L. Ed. 435 (1903); City of Pueblo v. Timbers, 31 Colo. 215, 72 P. 1059 (1903); Hasse v. Herring, 36 Colo. 383, 85 P. 629 (1906); Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

G. Variance.

Evidence of master's negligence sufficient under complaint charging negligence of master and fellow servant. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

Charge of failure to supply safe appliance supported by proof that appliance provided was useless. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

H. Damages.

Minor may recover for expenses incurred for treatment. A minor suing for a personal injury may recover not only for the mental and bodily suffering occasioned by the injury, but for liabilities incurred by him in being cured or treated for his injury. That he might avoid liability for the expenses so incurred, by reason of his minority, is no bar to the recovery. His minority is a personal privilege of which no third person can have advantage. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

But contract to furnish hospital care does not entitle servant to recover money expended for specialist. Assurances given to the servant at the time of his employment that in case of sickness or injury he will be received into a hospital maintained by the employer, and receive board, bed, medicines, and medical attendance free, do not entitle the servant to recover the expense of a trip to a distant city, and moneys expended there for the services of a specialist, although this was upon the advice of the physician in charge of the hospital. The employer is not even bound to provide a specialist at the hospital. Miller v. Camp Bird, Ltd., 46 Colo. 569, 105 P. 1105 (1909).

And error in awarding damages to which one is not entitled may be cured by a remittitur in writing, filed with the clerk of the trial court. Nat'l Fuel Co. v. Green, 50 Colo. 307, 115 P. 709 (1911).

8-2-202. Damages in case of death - limit.

If the death of a person is caused by an act of carelessness, omission of duty, or negligence as provided in section 8-2-201, the corporation or individual who would have been liable if the death had not ensued shall be liable to an action for damages regardless of the death of the party injured. In each such case the jury may award such damages as it deems fair and just, with reference to the necessary injury resulting from such death, to the parties who may be entitled to sue under this part 2; except that, if the decedent left neither a widow, widower, or minor children nor a dependent father or mother, the damages recoverable in any such action shall not exceed forty-five thousand dollars.

Source: L. 11: p. 295, § 2. C.L. § 4168. L. 33: p. 475, § 1. CSA: C. 97, § 96. CRS 53: § 80-6-2. L. 61: p. 488, § 1. C.R.S. 1963: § 80-5-2. L. 67: p. 481, § 2. L. 69: p. 329, § 2.

Cross references: For damages in general, see article 21 of title 13.

8-2-203. Who may sue - consolidation of actions.

  1. Every such action shall in case of death be maintained:
    1. By the husband or wife of the deceased;
    2. If there is no husband or wife or if he or she fails to sue within one year after such death, by the children of the deceased or their descendants;
    3. If such deceased is a minor or unmarried, without issue, by the father or mother or by both jointly; or
    4. If there is no such person entitled to sue, by such other next of kin of the deceased as may be dependent upon the deceased for support.
  2. Every such action, in case of death, may be maintained by any person entitled to sue for the use and benefit of the others so entitled to sue as well as for the plaintiff so suing, and the verdict of the jury and the judgment of the court shall specify the amount of damages awarded to each person, and, if any such actions are separately brought, the same shall be consolidated with the action first commenced in the court which has jurisdiction of said actions when so consolidated.

Source: L. 11: p. 295, § 3. C.L. § 4169. CSA: C. 97, § 97. CRS 53: § 80-6-3. C.R.S. 1963: § 80-5-3.

ANNOTATION

Federal statute regulating liability of interstate carriers precludes death action by widow. The federal statute regulating the liability of interstate carriers to their employees supersedes and displaces the provisions of the state statute within its purview, and since the former statute confers upon the personal representative of the employee the right of action for the death of such employee, attributable to the negligence of the master, the employee's widow is not permitted to maintain an action in her own name. Denver & R. G. R. R. v. Wilson, 62 Colo. 492, 163 P. 857 (1917).

8-2-204. Limitation of actions - limit of damages.

All actions provided for by this part 2 shall be brought within the time period prescribed in section 13-80-102, C.R.S. The amount of damages recoverable under this part 2 in case of personal injury resulting solely from negligence of a coemployee shall not exceed the sum of twenty-five thousand dollars.

Source: L. 11: p. 296, § 4. C.L. § 4170. L. 33: p. 476, § 2. CSA: C. 97, § 98. CRS 53: § 80-6-4. L. 61: p. 488, § 2. C.R.S. 1963: § 80-5-4. L. 86: Entire section amended, p. 702, § 7, effective May 23.

ANNOTATION

Law reviews. For article, "One Year Review of Torts", see 35 Dicta 53 (1958). For article, "In Defense of the Colorado Guest Statute", see 35 Dicta 174 (1958).

This section imposes a two-year statute of limitations on all rights of action created by the act. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

Amended answer pleading statute. After issues are joined and a cause has been set for trial, a court may in the exercise of reasonable discretion and in the interest of justice permit the filing of an amended answer pleading additional defenses, such as the two-year statute of limitations under this section. 37 C.J. 1227; Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912); Maryland Cas. Co. v. City & County of Denver, 90 Colo. 20, 6 P.2d 6 (1931).

And damages may not exceed $25,000. Under this section, damages against an employer by an employee for injuries resulting from the negligence of the employer or a fellow employee may not exceed the sum of $25,000. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957); Bein Farms, Inc. v. Dale, 137 Colo. 424, 326 P.2d 72 (1958).

This section applies to an action by an employee to recover for personal injuries sustained while working for his employer, and allegedly caused by its negligence in furnishing an "unsafe, insecure and defective" appliance for the performance of his duties. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949).

8-2-205. Assumption of risk abolished.

If any agent, servant, or employee, while in the performance of his duty for his employer, is injured or killed in the employer's service on account of the employer's negligence or any defect or peril connected with ways, works, machinery, or instrumentalities used in the business of the employer which could have been remedied or made safer by the use of ordinary diligence, a recovery for such injury or death may be had. The fact that such employee had knowledge of the defect or peril shall not be a bar to a recovery unless the repairing or remedying of such defect or peril was his principal duty. All stipulations, contracts, or agreements between an employee and his employer or between other persons contrary to the provisions of this section shall be null and void.

Source: L. 15: p. 197, § 1. C.L. § 4171. CSA: C. 97, § 99. CRS 53: § 80-6-5. C.R.S. 1963: § 80-5-5.

Cross references: For assumption of risk under the "Workers' Compensation Act of Colorado", see § 8-41-101.

ANNOTATION

Law reviews. For article, "Derogation of the Common Law Rule of Contributory Negligence", see 7 Rocky Mt. L. Rev. 161 (1935). For article, "Employer's Liability for Occupational Diseases", see 16 Rocky Mt. L. Rev. 60 (1943).

This section, by its terms, is premised upon the negligence of the employer. Nitzel v. Austin Co., 249 F.2d 710 (10th Cir. 1957).

But this section does not purport to create any new right of action. It merely abates a common-law defense to a statutory cause of action. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949).

And this section relieves the employees and workmen from the assumption of risk for injuries or death. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

Prior to the enactment of this section, the servant assumed only such risks as were obvious to a person of ordinary intelligence, ability and experience, and which arose out of the conditions that surrounded him at the time. Miller v. Camp Bird, Ltd., 46 Colo. 569, 105 P. 1105 (1909).

But workman still assumes risks not created by master's negligence. Since the enactment of this section, and the workmen's compensation act, the doctrine of assumption of any risk created by the master's negligence has disappeared, but the question of whether the employer was negligent remains, and the workman still assumes, so far as a suit for damages is concerned, the risks not created by the master's negligence. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

Instruction held correct. An instruction that if the defendant was negligent, and its negligence was the proximate cause of the injury, there was no assumption of risk was held correct. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

Evidence of negligence requiring submission of case to jury. In action by a farm hand to recover for injuries sustained when his hand was caught in a corn husker, it was held that there was a sufficient showing of negligence on the part of the employer to require submission of the case to the jury. Huddleston v. Ingersoll Co., 109 Colo. 134, 123 P.2d 1016 (1942).

8-2-206. Agricultural employers - agricultural employees - violations - penalties - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Adverse action" means a demotion, reassignment to a lower-ranked position or to a position with a lower level of compensation, decrease in compensation level, denial of promotion, or termination of employment; or other decision for employment purposes that adversely affects an agricultural employee.
    2. "Agricultural employee" means a person employed by an agricultural employer.
    3. "Agricultural employer" has the same meaning set forth in section 8-3-104 (1).
    4. "Director" means the director of the division.
    5. "Division" means the division of labor standards and statistics in the department of labor and employment.
  2. The rights, remedies, and penalties specified in this section are in addition to any rights, remedies, or penalties available to agricultural employees under article 3 or 6 of this title 8, part 2 of article 13.5 of this title 8, article 14.4 of this title 8, or any other remedies available pursuant to law.
    1. An agricultural employer shall not retaliate against any person, including an agricultural employee, asserting or seeking rights protected under article 3 or 6 of this title 8, part 2 of article 13.5 of this title 8, article 14.4 of this title 8, including complaining publicly or supporting an agricultural employee seeking or asserting rights, remedies, or penalties under those provisions of this title 8, or any other remedies available pursuant to law.
    2. There is a rebuttable presumption that an agricultural employer that takes an adverse action against an agricultural employee within ninety days after the agricultural employee has asserted or sought any protected rights, remedies, or penalties under article 3 or 6 of this title 8, part 2 of article 13.5 of this title 8, article 14.4 of this title 8, or any other remedies available pursuant to law has retaliated against the agricultural employee.
    3. An agricultural employee, a person who has a familial or workplace relationship with the agricultural employee, or a person with whom the agricultural employee exchanges care or support who has been aggrieved by retaliation by a person may assert a claim:
      1. In district court for injunctive and equitable remedies, a penalty in the amount of the greater of the actual damages or ten thousand dollars for each violation, and attorney fees and costs; or
      2. With the division pursuant to rules adopted by the director. The director may investigate and order all remedies available in district court or may decline to investigate and thus authorize the complainant to file suit in district court. A decision by the director to decline to investigate must be made within ninety days after the claim is filed as established by rule of the director. The statute of limitations is tolled for the purpose of filing a claim in district court from the date that the claim is asserted until ninety days after the director declines to investigate the claim.
      3. A person with whom the agricultural employee exchanges care or support.
    1. If a person who has engaged in retaliation has violated this section or has violated article 3 or 6 of this title 8, part 2 of article 13.5 of this title 8, or article 14.4 of this title 8 in a manner that has harmed an agricultural employee, the director may commence an action in district court on behalf of the state of Colorado against the person who retaliated against:

      (I) An agricultural employee;

      (II) A person who has a familial or workplace relationship with the agricultural employee; or

    2. The director may seek an order imposing restitution, injunctive and equitable remedies, and an appropriate penalty of more than one hundred dollars but not more than one thousand dollars per violation.

Source: L. 2021: Entire section added, (SB 21-087), ch. 337, p. 2172, § 1, effective June 25.

ARTICLE 2.5 FREEDOM OF LEGISLATIVE AND JUDICIAL ACCESS ACT

Section

8-2.5-101. Preventing legislative and judicial access to employees - intimidation of legislative witnesses - penalty.

    1. It is unlawful for any person to adopt or enforce any rule, regulation, or policy forbidding or preventing any of its employees, franchisees, or agents or entities under its control or oversight from, or to take any action against its employees, franchisees, or agents or entities under its control or oversight solely for, testifying before a committee of the general assembly or a court of law or speaking to a member of the general assembly at the request of such committee, court, or member regarding any action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto. Any person violating any provision of this section commits a class 2 misdemeanor.
    2. The prohibition in paragraph (a) of this subsection (1) shall not apply to testimony before a committee of the general assembly or a court of law that discloses confidential, proprietary, or otherwise privileged information of any person.

    1. (1.5) (a) It is unlawful for any person:
      1. To intimidate a legislative witness, by use of a threat, in order to intentionally influence or induce a legislative witness:
        1. To appear or not appear before a committee of the general assembly;
        2. To give or refrain from giving testimony to a committee of the general assembly;
        3. To testify falsely before a committee of the general assembly; or
        4. To avoid legal process summoning the legislative witness to attend and testify before a committee of the general assembly; or
      2. To take any action against a legislative witness for testifying before a committee of the general assembly.
    2. For the purposes of this subsection (1.5):
      1. "Legislative witness" means any individual that intends to testify or testifies before a committee of the general assembly either voluntarily or pursuant to a subpoena issued by any committee of the general assembly or of either house thereof.
      2. "Threat" means to communicate directly the intent to do any act that is intended to harm the health, safety, property, business, or financial condition of the legislative witness.
    3. Any person violating any provision of this subsection (1.5) commits a class 2 misdemeanor.
    1. An employee, a franchisee, an agent or an entity under the control of any person, or a legislative witness may recover damages, including reasonable attorney fees, from any person for injuries suffered through a violation of this section.
    2. Nothing in this section shall be construed to prohibit an employee, a franchisee, an agent or an entity under the control of any person, or a legislative witness from pursuing any other right of action permitted pursuant to law for injuries suffered through a violation of this section.
  3. Nothing in this section shall obligate any person to compensate an employee or agent for time spent testifying before a committee of the general assembly or a court of law or speaking to a member of the general assembly at the request or invitation of such committee, court, or member regarding any action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto.
  4. For purposes of this section, "person" means a corporation, a limited liability company, a partnership, an association, a firm, a state agency as defined in section 24-50.5-102 (4), C.R.S., a county, a city and county, a municipality, a federal agency, an individual, or any officer or agent thereof.

Source: L. 97: Entire article added, p. 1611, § 1, effective June 4. L. 98: (1.5) added and (2) amended, p. 693, § 1, effective August 5. L. 2021: (1)(a) and (1.5)(c) amended, (SB 21-271), ch. 462, p. 3139, § 84, effective March 1, 2022.

Cross references: For interference with the legislative process, see part 4 of article 2 of title 2; for attempt to influence a public servant, see § 18-8-306; for perjury and related offenses pertaining to governmental operations, see part 5 of article 8 of title 18; for attendance of witnesses before the general assembly, see § 2-2-313.

ANNOTATION

There is no basis to conclude that this section clearly expresses a public policy that forbids an employer from terminating an employee for filing a motion for a temporary restraining order or a lawsuit against an employer. The section does not clearly mandate a general public policy protecting access to the courts. Slaughter v. John Elway Dodge S.W./AutoNation, 107 P.3d 1165 (Colo. App. 2005).

To bring a successful claim under this section, a plaintiff must establish that any action taken was solely because of plaintiff's testimony. Emerson v. Wembley USA Inc., 433 F. Supp. 2d 1200 (D. Colo. 2006).

This statute protects an employee who testifies as a witness in a court proceeding upon being called by one of the parties or counsel to the proceeding but without an order, subpoena, or other formal court-issued request. Butler v. Bd. County Comm'rs for San Miguel, 2021 COA 32, 491 P.3d 506.

ARTICLE 3 LABOR PEACE ACT

Law reviews: For article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 63 Den. U. L. Rev. 395 (1986); for article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 64 Den. U. L. Rev. 271 (1987); for article, "Labor and Employment Law", which discusses Tenth Circuit decisions dealing with labor law, see 65 Den. U. L. 565 (1988); for a discussion of Tenth Circuit decisions dealing with labor law, see 67 Den. U. L. Rev. 751 (1990); for article, "The Law, Economics, and Politics of Right to Work: Colorado's Labor Peace Act and its Implications for Public Policy", see 70 U. Colo. L. Rev. 871 (1999).

Section

8-3-101. Short title.

This article shall be known and may be cited as the "Labor Peace Act".

Source: L. 43: p. 417, § 24. CSA: C. 97, § 94(24). CRS 53: § 80-5-21. C.R.S. 1963: § 80-4-21.

ANNOTATION

Law reviews. For article, "Some Legal Aspects of the Colorado Coal Strike", see 4 Den. B. Ass'n Rec. 22 (Dec. 1927). For article, "Governmental Adjustment of Colorado's Industrial Disputes 1915-1930", see 3 Rocky Mt. L. Rev. 223 (1931). For note, "The Constitutionality of the Labor Peace Act", see 18 Rocky Mt. L. Rev. 52 (1945). For article, "An Analysis of the Colorado Labor Peace Act", see 19 Rocky Mt. L. Rev. 359 (1947). For article, "The Extent to Which Taft-Hartley Act Has Superseded State Labor Laws", see 28 Dicta 47 (1951). For article, "Picketing -- Free Speech?", see 28 Dicta 61 (1951). For article, "One Year Review of Cases on Contracts", see 33 Dicta 57 (1956). For case note, "Uncertain Status of Public Sector Labor Arbitration in Colorado", see 48 U. Colo. L. Rev. 451 (1977). For article, "The Regional Transportation District Strike and the Colorado Labor Peace Act: A Study in Public Sector Collective Bargaining", see 54 U. Colo. L. Rev. 203 (1983).

The labor peace act, enacted in 1943, is a comprehensive statute regulating the conduct of parties to a labor dispute. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

Consequently, a municipal ordinance insofar as it deals with the conduct of parties to a "labor dispute" in an attempt to cover in a different and sometimes conflicting manner the same field as is covered by the labor peace act must be held without force or effect; for municipalities are creatures of either legislative enactment or constitutional provision, having only powers expressly or impliedly granted to them, and no statute or constitutional provision has expressly given cities power to regulate labor disputes, nor can such be said to be an implied power when the proper conduct of labor activities is a matter of statewide concern. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

However, the labor peace act is itself inapplicable where preempted by federal labor legislation. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Invalidity of such provisions to be determined by federal courts. Questions raised as to the invalidity of such provisions by virtue of the federal constitution and the jurisdiction of the state courts with the passage of federal labor acts must be determined by the federal courts. Denver Bldg. & Constr. Trades Council v. Shore, 124 Colo. 57, 234 P.2d 620 (1951).

But this article as a whole is not unconstitutional upon the theory that, as to employees engaged in interstate commerce, it infringes upon the field preempted by the national labor relations act and upon the ground that it is in direct conflict with federal legislation. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145 (1944).

Nor is this article unconstitutional on the ground that the definition of a "labor dispute" in subsection (13) of § 8-3-104 is too narrow. Denver Milk Producers v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947).

Employer's alleged violation of act did not foreclose his right to independent remedy. Where employer alleged in its affirmative defenses and counterclaim that plaintiffs' activities violated the "Colorado labor peace act", such allegation did not foreclose the employer's right to an independent remedy, and the employer was not obliged to first utilize the administrative provisions of the act in seeking a remedy. Pipeliners Local 798 v. Ellerd, 503 F.2d 1193 (10th Cir. 1974).

The labor peace act is not restricted in its application to industry and trade only. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

And there is an express recognition of the right of employees to engage in peaceful picketing throughout the provisions of the labor peace act. People ex rel. Shaffer v. Teamster Local 961, 175 Colo. 187, 486 P.2d 10 (1971); Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

If Colorado law is interpreted to allow an action by an employee for violation of a union's duty of fair representation, in order for employee to sustain the action, he must demonstrate that his claim of wrongful discharge has merit, so that it is probable he would have succeeded in any arbitration proceeding. If the union's invocation of arbitration proceedings would not have provided some relief to the employee, its refusal to take such action did not injure the employee. Hoff v. Amal. Transit Un., Div. 662, 758 P.2d 674 (Colo. App. 1987).

Trial court properly dismissed claim that employee was entitled to protection from retaliation on basis of work-related illness or injury or the filing of a claim for worker's compensation under this act where complaint did not allege any fact relating to efforts to organize under the labor peace act. Ferris v. Local 26, 867 P.2d 38 (Colo. App. 1993).

8-3-102. Legislative declaration.

  1. The public policy of the state as to employment relations and collective bargaining, in the furtherance of which this article 3 is enacted, is declared to be as follows:
    1. It recognizes that there are three major interests involved, namely: That of the public, the employee, and the employer. These three interests are to a considerable extent interrelated. It is the policy of the state to protect and promote each of these interests with due regard to the situation and to the rights of the others.
    2. Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever legitimate controversies may arise. It is recognized that certain employers, including farmers and farmer cooperatives, in addition to their general employer problems, face special problems arising from perishable commodities and seasonal production which require adequate consideration. It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted in the conduct of their controversy to intrude directly or indirectly into the primary rights of third parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, intimidation, restraint, or coercion.
    3. Negotiations of terms and conditions of work should result from voluntary agreement between employer and employee. For the purpose of such negotiation, an employee has the right, if he desires, to associate with others in organizing and bargaining collectively through representatives of his own free choosing without intimidation or coercion from any source.
    4. All rights of persons to join labor organizations or unions and their rights and privileges as members of labor organizations or unions should be recognized, safeguarded, and protected. A person shall not be denied membership in a labor organization or union on account of race, creed, color, religion, sex, sexual orientation, gender identity, gender expression, marital status, disability, national origin, or ancestry or by any unfair or unjust discrimination. A labor organization or union shall neither require arbitrary or excessive initiation fees and dues nor impose excessive, unwarranted, arbitrary, or oppressive fines, penalties, or forfeitures. The members are entitled to full and detailed reports from their officers, agents, or representatives of all financial transactions and have the right to elect officers by secret ballot and to determine and vote upon the question of striking, not striking, and other questions of policy affecting the entire membership.
    5. In order to preserve and promote the interests of the public, the employee, and the employer alike, the state shall establish standards of fair conduct in employment relations and provide a convenient, expeditious, and impartial tribunal by which these interests may have their respective rights and obligations adjudicated, without limiting the jurisdiction of the courts to protect property, and to prevent and punish the commission of unlawful acts. While limiting individual and group rights of aggression and defense, the state substitutes processes of justice for the more primitive methods of trial by combat.
    6. It is declared to be the common law of the state that no act which if done by one person would constitute a crime under the common law or statutes of this state is any less a crime if committed by two or more persons or corporations acting in concert, and no act which under the common law or statutes of this state is a wrongful act for which any person has a remedy against the wrongdoer if done by one person is any less a remedial wrong if done by two or more persons or corporations in concert, nor shall the injured person be denied relief in the courts of this state in law or equity except as such relief may be expressly limited by statute.
      1. The general assembly hereby finds and determines that the matters contained in this article have important statewide ramifications for the labor force in this state. The general assembly, therefore, declares that the matters contained in this article are of statewide concern.
      2. to (III) Repealed.

Source: L. 43: p. 392, § 1. CSA: C. 97, § 94(1). CRS 53: § 80-5-1. C.R.S. 1963: § 80-4-1. L. 99: (1)(g) added, p. 288, § 1, effective April 14. L. 2008: (1)(d) amended, p. 1598, § 11, effective May 29. L. 2019: IP(1) amended and (1)(g)(II), (I)(g)(II.5), and (1)(g)(III) repealed, (HB 19-1210), ch. 320, p. 2971, § 3, effective January 1, 2020. L. 2021: (1)(d) amended, (HB 21-1108), ch. 156, p. 890, § 13, effective September 7.

Cross references: For the legislative declaration contained in the 2008 act amending subsection (1)(d), see section 1 of chapter 341, Session Laws of Colorado 2008. For the legislative declaration in HB 19-1210, see section 1 of chapter 320, Session Laws of Colorado 2019. For the legislative declaration in HB 21-1108, see section 1 of chapter 156, Session Laws of Colorado 2021.

ANNOTATION

Declarations of policy stated in labor legislation such as the labor peace act are persuasive in regard to the intended coverage of the act. St. Luke's Hosp. v. Indus. Comm'n, 142 Colo. 28, 349 P.2d 995 (1960).

The public policy established by the general assembly precludes courts from imposing a heightened standard of proof on persons seeking remedies against a labor union for allegedly tortious conduct. Vikman v. Int'l Broth. of Elec. Workers, 889 P.2d 646 (Colo. 1995).

And the purpose of the labor peace act is to restrict the business judgment of both operators and employees in the promotion of the welfare of the industry and of the public. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

Employer not required to conform to union rule opposed to policy of this section. A union does not have the right, based on an employer's contract to conform to any and all rules adopted by the union, to withdraw a shop card upon the employer's refusal to agree to a rule which is opposed to the public policy of the state of Colorado as declared by the general assembly in this section. Journeymen Barbers Local 205 v. Indus. Comm'n, 128 Colo. 121, 260 P.2d 941 (1953).

Such as violation of the principle of collective bargaining. To require the owner and operator of a business to become a limited or nonactive member of his employees' union is discriminatory and in violation of the cardinal principle of collective bargaining. Journeymen Barbers Local 205 v. Indus. Comm'n, 128 Colo. 121, 260 P.2d 941 (1953).

The isolated use of the term "industrial peace" in the declaration of public policy is not meant to limit the application of the labor peace act only to industry and trade, because the sentence involved goes on to itemize other conditions which the act is designed to promote, including the "uninterrupted production of goods and services". To ascertain the clear meaning of this phrase, it must be viewed in the disjunctive thereby indicating two separate conditions, to wit: uninterrupted production of goods and uninterrupted services. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

However, a charitable private hospital is not amenable to the collective bargaining provisions of the labor peace act. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

But a nonprofit school which works with handicapped children and hires teacher-therapists and counselors for this purpose, but does not provide surgical or medical services and does not employ or have in attendance doctors or nurses, is subject to the provisions of the labor peace act. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

8-3-103. Construction.

Except as specifically provided in this article, nothing in this article shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work, nor shall anything in this article be so construed as unlawfully to invade the right to freedom of speech. Nothing in this article shall be so construed or applied as to deprive any employee of any unemployment benefit which he might otherwise be entitled to receive under any other laws of the state of Colorado. The fact that any provisions of this article have been adopted from other states, or the language of the statutes of other states has been used in the preparation of this article shall not be taken to adopt as the construction of such provisions the decisions of other states construing such statutes of other states. It is not the intention of the legislature in adopting this article necessarily to adopt the construction that may have been placed upon similar provisions by the courts of other states.

Source: L. 43: p. 417, § 24. CSA: C. 97, § 94(24). CRS 53: § 80-5-21. C.R.S. 1963: § 80-4-21.

ANNOTATION

The words "nor shall anything in this article be so construed as unlawfully to invade the right to freedom of speech", pertinent as they may be to the application of such regulatory provisions of the labor peace act as are not predicated upon the prerequisite of compulsory incorporation of a labor union, do not salvage those provisions which were enacted upon the assumption of the imposed corporate form on unions found to be unconstitutional. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145 (1944).

This section does not confer eligibility for unemployment compensation benefits upon a claimant who is otherwise ineligible. McClaflin v. Indus. Claim Appeals Office, 126 P.3d 288 (Colo. App. 2005).

8-3-104. Definitions.

As used in this article 3, unless the context otherwise requires:

    1. "Agricultural employer" means a person that:
      1. Regularly engages the services of one or more employees or contracts with any person who recruits, solicits, hires, employs, furnishes, or transports employees; and
      2. Is engaged in any service or activity included in section 203 (f) of the federal "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq., as amended, or engaged in "agricultural labor" as defined in section 3121 (g) of the federal "Internal Revenue Code of 1986", as amended.
    2. The meaning of "agricultural employer" must be liberally construed for the protection of persons providing services to an employer.

    (1.5) "All-union agreement" means a contractual provision between an employer or group of employers and a collective bargaining unit representing some or all of the employees of the employer or group of employers providing for any type of union security and compelling an employee's financial support or allegiance to a labor organization. "All-union agreement" includes, but is not limited to, a contractual provision for a union shop, a modified union shop, an agency shop (meaning a contractual provision that provides for periodic payment of a sum in lieu of union dues but does not require union membership), a modified agency shop, a prehire agreement, maintenance of dues, or maintenance of membership.

  2. "Authority" means the state of Colorado; any board, commission, agency, or instrumentality thereof; or any district, municipality, city and county, county, or combination thereof, which acquires or operates a mass transportation system.
  3. "Collective bargaining" means negotiation by an employer and the representative of a majority of his employees who are in a collective bargaining unit or their representatives concerning representation or terms and conditions of employment of such employees in a mutually genuine effort to reach an agreement with reference to the subject under negotiation.
  4. "Collective bargaining unit" means an organization selected by secret ballot, as provided in section 8-3-107, by a majority vote of the employees of one employer employed within the state who vote at an election for the selection of such unit; except that, where a majority of such employees engaged in a single craft, division, department, or plant have voted by secret ballot that the employees of such single craft, division, department, or plant shall constitute their collective bargaining unit, it shall be so considered. Two or more collective bargaining units may bargain collectively through the same representative or where a majority of the employees in each separate unit have voted to do so by secret ballot, as provided in section 8-3-107.
  6. Repealed.
  7. "Company union" means an organization of employees, the members of which are the employees of only one employer.
  8. "Director" means the director of the division of labor standards and statistics.
  9. "Division" means the division of labor standards and statistics in the department of labor and employment.
  10. "Election" means a proceeding in which the employees authorized by this article cast a secret ballot to select a collective bargaining unit or for any other purpose specified in this article, including elections conducted by the division of labor standards and statistics or by any tribunal having competent jurisdiction or whose jurisdiction has been accepted by the parties.
    1. "Employee" includes any person:
      1. Working for another for hire in the state of Colorado in a nonexecutive or nonsupervisory capacity, and is not limited to the employees of a particular employer and includes any individual whose work has ceased solely as a consequence of or in connection with any current labor dispute or because of any unfair labor practice on the part of an employer; and
        1. Who has not refused or failed to return to work upon the final disposition of a labor dispute or a charge of an unfair labor practice by a tribunal having competent jurisdiction of the same or whose jurisdiction was accepted by the employee or the employee's representative;
        2. Who has not been found to have committed or to have been a party to any unfair labor practice under this article 3;
        3. Who has not obtained regular and substantially equivalent employment elsewhere; or
        4. Who has not been absent from the person's employment for a substantial period of time during which reasonable expectancy of settlement has ceased, except by an employer's unlawful refusal to bargain, and whose place has been filled by another engaged in the regular manner for an indefinite or protracted period and not merely for the duration of a strike or lockout.
    2. "Employee" does not include:
      1. An independent contractor;
      2. Domestic servants employed in and about private homes;
      3. An individual employed by the individual's parent or spouse;
      4. An employee who is subject to the federal "Railway Labor Act", 45 U.S.C. sec. 151 et seq., as amended; or
      5. A parent, spouse, or child of an agricultural employer's immediate family.
      1. "Employer" means a person who regularly engages the services of eight or more employees, other than persons within the classes expressly exempted under the terms of subsection (11) of this section. (12) (a) (I) "Employer" means a person who regularly engages the services of eight or more employees, other than persons within the classes expressly exempted under the terms of subsection (11) of this section.
      2. "Employer" includes:
        1. Any person acting on behalf of an employer within the scope of the employer's authority, express or implied; and
        2. An agricultural employer.
    2. "Employer" does not include the state or any political subdivision thereof, except where the state or any political subdivision thereof acquires or operates a mass transportation system or any carrier by railroad, express company, or sleeping car company subject to the federal "Railway Labor Act", 45 U.S.C. sec. 151 et seq., as amended, or any labor organization or anyone acting in behalf of such organization other than when the employer is acting as an employer-in-fact.
    1. "Labor dispute" means any controversy between an employer and such of his employees as are organized in a collective bargaining unit concerning the rights or process or details of collective bargaining. The entering into of a contract for an all-union agreement or the refusal of an employer to enter into an all-union agreement shall not constitute a labor dispute. It shall not be a labor dispute where the disputants do not stand in the proximate relation of employer and employee. No jurisdictional dispute or controversy between two or more unions as to which of them has or shall have jurisdiction over certain kinds of work; or as to which of two or more bargaining units constitutes the collective bargaining unit as to which the employer stands impartial or ready to negotiate or bargain with whichever is legally determined to be such bargaining unit, shall constitute a labor dispute.
    2. The general right of an employer to select his own employees is recognized and shall be fully protected. It shall not constitute a labor dispute if an employer discharges or refuses to employ an employee on account of incompetence, neglect of work, unsatisfactory service, or dishonesty; but the discharge of an employee or the refusal to employ an employee shall constitute a labor dispute only when such discharge or refusal to employ is founded upon membership in a union or labor organization or activity therein or when such discharge or failure to employ is in violation of a contract.
    3. No controversy between an employer and his employee shall constitute a labor dispute until after a bargaining unit in accordance with this article is created and a dispute arises between the bargaining unit and the employer.
    4. No labor dispute shall arise from the refusal of an employer to join a union or to cease work in his own business.
  14. "Local union" means an organization of employees employed in this state, the membership of which includes employees of one or more employers, whether or not they are affiliated with an organization of employees employed in one or more other states.
  15. "Mass transportation system" means any system which transports the general public by bus, rail, or any other means of conveyance moving along prescribed routes, except any railroad subject to the federal "Railway Labor Act", 45 U.S.C. sec. 151 et seq.
  16. "Person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, or receivers.
  17. "Representative" includes any person who is the duly authorized agent of a collective bargaining unit.
  18. "Secondary boycott" includes causing or threatening to cause, and combining or conspiring to cause or threaten to cause, injury to one not a party to the particular labor dispute, to aid which such boycott is initiated or continued, whether by:
    1. Withholding patronage, labor, or other beneficial business intercourse;
    2. Picketing;
    3. Refusing to handle, install, use, or work on particular materials, equipment, or supplies; or
    4. Any other unlawful means in order to bring him against his will into a concerted plan to coerce or inflict damage upon another or to compel the party with whom the labor dispute exists to comply with any particular demands.

Source: L. 43: p. 394, § 2. CSA: C. 97, § 94(2). CRS 53: § 80-5-2. C.R.S. 1963: § 80-4-2. L. 65: p. 810, § 1. L. 69: pp. 594, 731, §§ 72, 2. L. 77: (1) R&RE, p. 419, § 1, effective June 29. L. 86: (5) and (6) repealed, p. 502, § 125, effective July 1. L. 96: (11)(f) added, p. 293, § 1, effective April 12. L. 2016: (8), (9), and (10) amended, (HB 16-1323), ch. 131, p. 377, § 9, effective August 10. L. 2021: IP, (1), (11), and (12) amended and (1.5) added, (SB 21-087), ch. 337, p. 2174, § 2, effective June 25.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Law reviews. For article, "Labor Injunctions Under the Colorado Labor Peace Act", see 26 Dicta 63 (1949). For note, "Rural Poverty and the Law in Southern Colorado", see 47 Den. L.J. 82 (1970).

Applied in Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

II. ALL-UNION AGREEMENT.

Regulation not limited to closed shop agreements. In view of the emphatic language contained in the legislative declaration of rights of employees in § 8-3-106, regulation of "all-union agreements" is not limited to closed shop agreements. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Any financial obligation imposed upon employees pursuant to a collective bargaining agreement executed and sought to be enforced in Colorado has features of compulsory unionism and as such is to be considered an "all-union agreement" under subsection (1). Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Compulsory monetary support of a union is the "practical equivalent" of compulsory membership. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Procedures for establishment are incident to state's power. The procedures for establishing a collective bargaining unit under this article are merely an incident of the state's power to prohibit the application of union security agreements under the permissive grant of authority contained in section 14(b) of the federal Taft-Hartley act. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

"Collective bargaining unit" for purposes of § 8-3-108 (1)(c). In Colorado a "collective bargaining unit", for purposes of the union security agreement provision of this article, may be something different than a collective bargaining unit for other purposes of labor-management relations. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Such unit must be established pursuant to requirements of subsection (4). In the context of § 8-3-108 (1)(c), a collective bargaining unit is a unique entity which may only be established pursuant to the requirements of subsection (4). Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Condition precedent to right to enter into all-union agreement with employer. A collective bargaining unit, as defined by subsection (4), is a condition precedent to any labor organization's right to enter into an all-union agreement with an employer under Colorado law. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Application of subsection (4) is severable. The application of subsection (4) to the union security provisions of this article is severable from its application in other contexts of the act. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

III. COLLECTIVE BARGAINING UNIT.

The words "craft, division, department or plant" of subsection (4) are drawn out of custom and usage of industrial and business organization. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

And determinations of what constitutes a "craft, division, department or plant" is left to the discretion of the fact finder. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

IV. EMPLOYEE AND EMPLOYER.

In defining the terms "employer", and "employee", this section does not exclude an employer such as a nonprofit school for handicapped children nor its employees from the labor peace act. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

Furthermore, none of the phraseology of this section premises an interpretation of exclusion of nonindustrial employers and employees. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

Public employees. There is no state legislation concerning the rights of public employees to engage in collective bargaining. This article, with an exception, excludes the state or any political subdivision thereof. Greeley Police Union v. City Council, 191 Colo. 419, 553 P.2d 790 (1976).

Coming within the statutory definition of an "employer" is a necessary basis for jurisdiction under the labor peace act. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

For the labor peace act does not apply where an employer employs less than eight employees. Associated Master Barbers Local 115 v. Journeymen Barbers Local 205, 132 Colo. 52, 285 P.2d 599 (1955).

However, it is not necessary that eight employees should be employed during the entire year, but it is sufficient if such employment continues through a reasonably definite period of time and is not casual. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

Since this section does not define an "employer" as one who has an average employment of eight or more employees through the preceding year or as one who has regularly engaged the services of eight or more employees for any specified period of time, as the term "regularly engages" is not further defined in this section. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

Rather, "regularly", as used in subsection (12), refers to the question whether the occurrence is or is not in an established mode or plan in the operation of the business and has no reference to the constancy of the occurrence. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

As the word "regularly" is not synonymous with constantly or continuously; the work may be intermittent and yet regular, and men may be regularly but not continuously employed. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

Labor Peace Act does not limit or constrain the law on metropolitan sewage disposal districts concerning the determination of prevailing rates of pay. Such a district is not required to negotiate or engage in collective bargaining in fixing employee compensation at prevailing rates for equivalent work. Local 1 v. Metro Wastewater Reclamation, 876 P.2d 82 (Colo. App. 1994).

V. LABOR DISPUTE.

The definition of a "labor dispute" in subsection (13) is not invalid on the ground that it is too narrow. Denver Milk Producers v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947); Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1948).

One need not be in a "labor dispute" as defined by this section to have a right under the fourteenth amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

For the right of free speech does not depend in such a case on whether or not a "labor dispute" as defined in this section is involved. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

And forbidding resort to peaceful persuasion through picketing because there is no immediate employer-employee dispute is such a ban of free communications as to be inconsistent with the guarantee of freedom of speech. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

As union members have a right to picket a nonunion employer in the absence of a "labor dispute" as defined by subsection (13), because a state cannot exclude working men from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. the interdependence of economic interest of all engaged in the same industry has become a commonplace, and so the right of free communication cannot, therefore, be mutilated by denying it to workers, in a "dispute" with an employer, even though they are not in his employ. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Moreover, a labor dispute as defined in this section may exist even though there is no controversy between an employer and his own employees. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

But a bona fide dispute must exist to allow picketing. Where the record shows the absence of any negotiations having taken place, or a dispute having occurred, or a statement of grievances having been submitted by the individuals striking and picketing to the individuals against whom the strike is called and against whom the pickets are picketing, it is against public interest to allow such picketing because a bona fide dispute has not been shown to exist. Int'l Bhd. of Teamsters v. Publix Cab Co., 119 Colo. 208, 202 P.2d 154 (1949).

Subsection (13)(d), which cannot give rise to a legal labor dispute, cannot become the basis of a rupture of harmonious labor relations which admittedly existed prior to it. A labor union, or an employer cannot use such a provision as the basis for disturbing preexisting labor relations. To attempt any other construction would be to abandon all logic and reason, to ignore the plain meaning of words, and to discard all fundamental rules of statutory construction. Journeymen Barbers Local 205 v. Indus. Comm'n, 128 Colo. 121, 260 P.2d 941 (1953).

A suit for an injunction to restrain a union from picketing and engaging in a secondary boycott for the purpose of forcing an employer to sign a union contract does not arise out of a "labor dispute" as defined in subsection (13) of this section. Denver Milk Producers v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947); Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1948).

No "labor dispute" as defined by this section found to exist. Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1984).

For "labor dispute" under former provision, see Local 13, Teamsters v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P.2d 436 (1940); Local 13, Teamsters v. Buckingham Transp. Co., 108 Colo. 419, 118 P.2d 1088 (1941).

Applied in People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

VI. PERSON.

Definition of "person" does not exclude nonprofit school for handicapped children. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

VII. MASS TRANSPORTATION SYSTEM.

City-operated bus company is considered a "mass transportation system" operated by a political subdivision of the state for purposes of the "Labor Peace Act". Hoff v. Amal. Transit Un., Div. 662, 758 P.2d 674 (Colo. App. 1987).

Regional Transportation District is an "authority" within meaning of this section. Reg'l Transp. Dist. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

8-3-105. Director to administer - adopt rules and regulations.

The director shall enforce and administer the provisions of this article and may adopt reasonable rules and regulations relative to its administration and to the conduct of all elections and hearings pertaining to mass transportation as defined in section 8-3-104 (15). Such rules and regulations shall not be effective until ten days after the date thereof.

Source: L. 43: p. 397, § 3. CSA: C. 97, § 94(3). CRS 53: § 80-5-3. C.R.S. 1963: § 80-4-3. L. 64: p. 148, § 82. L. 65: p. 811, § 2. L. 69: p. 594, § 73. L. 86: Entire section R&RE, p. 470, § 24, effective July 1.

Cross references: For rule-making by state agencies in general, see article 4 of title 24.

ANNOTATION

Analysis

I. ADMINISTRATION.

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment to this section which placed the duty of enforcing and administrating the "Labor Peace Act" on the director of the division of labor instead of the industrial commission.

The labor peace act confers jurisdiction on the industrial commission only in cases where the number of employees is eight or more. Int'l Bhd. of Teamsters v. Publix Cab Co., 119 Colo. 208, 202 P.2d 154 (1949).

The commission has jurisdiction to enforce the provisions of the labor peace act against a nonprofit school for handicapped children which does not provide medical services of any sort. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

II. RULES AND REGULATIONS.

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred rule-making authority under this section to the director of the division of labor.

Rules and regulations adopted by the commission, unless expressly or impliedly authorized by statute, are without force or effect if they add to, change, or modify existing statutes. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

For the commission's authority to regulate does not include the authority to legislate, but is strictly limited by the law under which it is pursued. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

Hence, when a statute clearly provides a method for accomplishing a desired result, the commission cannot set up a regulation which is contrary thereto, as its regulations must fit within the framework of the statute itself. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

Regulations protecting right to petition for election to ratify all-union agreement. The director of the division of labor does not have the authority to adopt rules protecting employees' right to petition for an election to ratify an all-union agreement; the authority to promulgate such regulations is with the industrial commission. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

8-3-106. Rights of employees.

In accordance with the provisions of this article, employees have the right of self-organization and the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own free choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. Each employee also has the right to refrain from any of such activities. The rights of each employee are essential rights, and nothing contained in this article shall be so construed as to infringe upon or have any operation against or in conflict with such rights.

Source: L. 43: p. 397, § 4. CSA: C. 97, § 94(4). CRS 53: § 80-5-4. C.R.S. 1963: § 80-4-4.

ANNOTATION

Law reviews. For article, "The Regional Transportation District Strike and the Colorado Labor Peace Act: A Study in Public Sector Collective Bargaining", see 54 U. Colo. L. Rev. 203 (1983).

State legislative policy concerning employer-employee relations is declared in this section. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Legislative intent. The language of the third sentence of this section evinces an intent on the part of the general assembly to protect the working man's right to freely chart his own course with regard to labor organization activities. Commc'ns Workers of Am. v. Western Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Labor Peace Act does not limit or constrain the law on metropolitan sewage disposal districts concerning the determination of prevailing rates of pay. Such a district is not required to negotiate or engage in collective bargaining in fixing employee compensation at prevailing rates for equivalent work. Local 1 v. Metro Wastewater Reclamation, 876 P.2d 82 (Colo. App. 1994).

Section held preempted by federal labor legislation since the labor management relations act contains a provision (29 U.S.C. § 157) which is the equivalent of this section. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Regulation of all-union agreements not limited to closed shop agreements. In view of the emphatic language contained in the legislative declaration of rights of employees in this section, regulation of "all-union agreements" is not limited to closed shop agreements. Commc'ns Workers of Am. v. Western Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Applied in City & County of Denver v. Indus. Comm'n, 195 Colo. 431, 579 P.2d 80 (1978); Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

8-3-107. Representatives and elections.

  1. A unit chosen for the purpose of collective bargaining shall be the exclusive representative of all of the employees in such unit, if the majority of the employees of one employer, or the majority of the employees of one employer in a craft, vote at an election. But employees individually have the right at any time to present grievances to their employer in person or through representatives of their own free choosing, and the employer shall confer with them in relation thereto.
  2. When a question arises concerning the selection of a collective bargaining unit, it shall be determined by secret ballot, and the director, upon request, shall cause the ballot to be taken in such manner as to show separately the wishes of the employees in any craft, division, department, or plant as to the selection of the collective bargaining unit.
  3. When a question arises concerning the selection of a collective bargaining unit, the director shall determine the question thereof by taking a secret ballot of employees and certifying in writing the results thereof to the bargaining units involved and to their employer. There shall be included on any ballot for the selection of a bargaining unit the names or suitable description of each bargaining unit submitted to the director and claimed to be the appropriate unit by an employee or group of employees participating in the election; except that the director, in his discretion, may exclude from the ballot any bargaining unit which, at the time of the election, stands deprived of its rights under this article by reason of a prior adjudication of its having engaged in an unfair labor practice. The ballot shall be so prepared as to permit a vote against representation by any unit named on the ballot. The director's certification of the results of any election shall be conclusive as to the findings included therein, unless reviewed in the manner provided by section 8-3-110 (8), for review of orders of the director.
  4. Questions concerning the selection of collective bargaining units may be raised by petition of any employee or his employer or the representative of either of them. Where it appears by the petition that any emergency exists requiring prompt action, the director shall act upon said petition forthwith and hold the election requested within such time as will meet the requirements of the emergency presented. The fact that one election has been held shall not prevent the holding of another election among the same group of employees, if it appears to the director that sufficient reason therefor exists.
  5. The director shall investigate and determine which persons shall be qualified and entitled to vote at any election held by him and shall prepare and certify a poll list of such qualified voters and shall file the same in the office of the director not later than twenty-four nor earlier than forty-eight hours preceding the time of such balloting. The list shall be available to the collective bargaining units whose interests are involved in the election. On request of any employee, the list shall be prepared so as to show separately which employees are entitled to vote for general representation of the employees and which employees are entitled to vote separately for craft representation or representation of any one of several plants of a common employer. No person whose name is not so certified shall be entitled to vote at such election. The director shall protect the secrecy of the ballot and shall take all proper measures for the accurate counting thereof and shall certify the result thereof and immediately file such certificate in the records of the division and make the same available for the inspection of any person interested. The bargaining units so elected and certified shall be the respective representatives of the employees so electing them and recognized as such under this article. The names of all persons voting at the election for the selection of a bargaining unit shall be certified to the division and filed in its records and shall constitute the voting roll for said bargaining unit for all purposes under this article. The name of any person leaving such employment shall be removed from the roll; except that any employee whose name appears on said voting roll may have his name withdrawn from said roll by notice in writing to the division.

Source: L. 43: p. 398, § 5. CSA: C. 97, § 94(5). CRS 53: § 80-5-5. C.R.S. 1963: § 80-4-5. L. 69: p. 595, § 74. L. 86: (3) amended, p. 470, § 25, effective July 1.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Law reviews. For notes, "Evolving Standards for Duty of Fair Representation Cases Under Section 301", see 62 Den. U. L. Rev 627 (1985). For comment, "Local No. 82 Furniture Movers v. Crowley: Title I Relief When Title IV Claims Are at Issue Under the LMRDA", see 62 Den. U. L. Rev. 675 (1985).

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment to this section which placed the duty of enforcing and administering the "Labor Peace Act" on the director of the division of labor instead of the industrial commission.

II. SELECTION OF COLLECTIVE BARGAINING UNIT.

There is a strong policy in this section in favor of fractional representation of the employees of one employer. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

And the determination of the proper group of employees to be represented in a collective bargaining unit is a matter for the industrial commission. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

Moreover, absent a showing that such determination is unlawful, a court of review is not justified in voiding his ruling, as determinations of this nature have been left by this section to the informed discretion of the director empowered to administer the law. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

This section does not specify any particular point in time when a request for a separate election among a certain craft, division, or department must be made. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

III. DETERMINATION OF QUALIFIED VOTERS.

The procedure for certifying election lists by the industrial commission is specifically set forth in this section. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

And this section is complete as to how one attains the status of an eligible voter. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

Hence, a commission regulation providing for challenges at voting is of no effect. To hold that the clear words of this section can be circumvented by a regulation adopted by the industrial commission providing for challenges at the time of voting is to ignore their plain meaning and confer legislative powers on the commission, and such a regulation is without legal force or effect. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

Nor are regulations of the NLRB. The rules and regulations of the national labor relations board relating to challenges at elections have no application in view of the precise wording of this section, which does not permit challenges at the time of voting. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

This section, as thus construed, preserves the secrecy of the ballot to those who vote in an election. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

However, the union, or those employees, who sought the election have the right to make challenges prior to final certification of the polling list, and it is at that time that any evidence which it is contended affects the eligibility of any person on the voting list must be presented. Graham Furn. Co. v. Indus. Comm'n, 138 Colo. 244, 331 P.2d 507 (1958).

But challenging change in polling list after its approval cannot be raised for first time on appeal. Dry Cleaners & Laundry Workers Local 304 v. Sunnyside Cleaners & Shirt Laundry, 146 Colo. 31, 360 P.2d 446 (1961).

8-3-108. What are unfair labor practices.

  1. It is an unfair labor practice for an employer, individually or in concert with others, to:
    1. Interfere with, restrain, or coerce his employees in the exercise of the rights guaranteed in section 8-3-106;
    2. Initiate, create, dominate, or interfere with the formation or administration of any labor organization or contribute financial support to it; except that an employer shall not be prohibited from reimbursing employees at their prevailing wage rate for time spent conferring with him, nor from cooperating with representatives of at least a majority of his employees in a collective bargaining unit, at their request, by permitting employee organizational activities on employer premises or the use of employer facilities where such activities or use create no additional expense to the employer;
      1. Encourage or discourage membership in any labor organization, employee agency, committee, association, or representation plan by discrimination in regard to hiring, tenure, or other terms or conditions of employment; except that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employees in a collective bargaining unit if such all-union agreement is approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater, by secret ballot in favor of such all-union agreement in an election provided for in this paragraph (c) conducted under the supervision of the director. Where the collective bargaining unit involved is currently recognized under sections 8 or 9 of the "National Labor Relations Act", as amended, (49 Stat. 449; 61 Stat. 136), or where the collective bargaining unit involved is currently recognized by reason of certification by the director or the national labor relations board, or where such units were so recognized at the time of an election provided for in this paragraph (c), there is and shall be deemed to have been no need for a certification election as a precedent to an election provided for in this paragraph (c) in such collective bargaining unit on the issue of an all-union agreement. The employees in such a recognized or certified unit within this state shall be the only employees eligible to vote in an election provided for in this paragraph (c) held in such unit.
        1. Any agreement as defined in section 8-3-104 (1.5) between an employer and a labor organization in existence on June 29, 1977, which has not been voted upon by the employees covered by it may, by written mutual agreement of such employer and labor organization, be ratified and upon such ratification shall be filed with the director. Any agreement as defined in section 8-3-104 (1.5) between an employer and a labor organization in existence on June 29, 1977, which has not been ratified and filed, as provided in this subsection (1)(c)(II), shall not be legal, valid, or enforceable during the remaining term of that labor contract unless and until either the employer, the labor organization, or at least twenty percent of the employees covered by such agreement file a petition upon forms provided by the division, demanding an election submitting the question of the all-union agreement to the employees covered by such agreement and said agreement is approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater, by secret ballot in favor of such all-union agreement in an election provided for in this subsection (1)(c) conducted under the supervision of the director.
        2. Upon filing of such instrument of ratification with the director, the director shall certify that such agreement complies with the provisions of section 8-3-104 (1.5) notwithstanding the absence of any other election requirements of this article 3, and by virtue of such ratification and certification, such agreement shall be deemed legal, valid, and enforceable to the extent permitted under the provisions of this article 3, subject to the provisions of subsection (1)(c)(II)(D) of this section.
        3. Within two weeks after the certification by the director provided for in sub-subparagraph (B) of this subparagraph (II), the employer which is a party to such agreement shall post or give written notice to all employees covered by such agreement on the date of ratification of the fact that the agreement has been ratified and certified pursuant to the provisions of this subparagraph (II) and of the right of such employees to file a petition demanding an election as provided in sub-subparagraph (D) of this subparagraph (II). Proof of giving of notice shall be filed with the director within twenty days after the certification by the director provided for in sub-subparagraph (B) of this subparagraph (II).
        4. Within forty-five days after the certification by the director provided for in sub-subparagraph (B) of this subparagraph (II) twenty percent of the employees covered by such agreement may file a petition, upon forms provided by the division, demanding an election submitting the question of ratification of such agreement to the employees covered by such agreement. If ratification of the agreement is approved by the affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater, in said election, the agreement shall be conclusively deemed ratified. Such election shall be held as promptly as possible following the filing of the petition. In the event that a certified contract expires or is terminated prior to the conducting of such an election, such certification shall be applicable to any subsequent agreement between the same parties until such election may be held.
      3. The director shall declare any such all-union agreement terminated whenever:
        1. He finds that the labor organization involved unreasonably has refused to receive as a member any employee of such employer, and any person interested may come before the director, as provided in section 8-3-110, and ask the performance of this duty; or
        2. The employer or twenty percent of the employees covered by such agreement file a petition with the director on forms provided by the division seeking to revoke such all-union agreement and, in an election conducted under the supervision of the director, there is not an affirmative vote of at least a majority of all the employees eligible to vote or three-quarters or more of the employees who actually voted, whichever is greater, in such election by secret ballot in favor of such all-union agreement. Such petition may only be filed within a time period between one hundred twenty and one hundred five days prior to the end of the collective bargaining agreement or prior to a triennial anniversary of the date of such agreement, and the division must complete said election within sixty days prior to the termination or triennial anniversary of said collective bargaining agreement. The director may conduct an election within a collective bargaining unit no more often than once during the term of any collective bargaining agreement or once every three years in the case of agreements for a period longer than three years.
      4. The director shall provide a means by which employees may submit confidential petitions for an election under this paragraph (c), a means for verifying the employment, status, and eligibility of petitioners, and a means for determining the sufficiency of such petitions with respect to the twenty percent signature requirement, all of which shall be accomplished without disclosing the identification of such petitioners, except as allowed under subparagraph (V) of this paragraph (c). This duty shall apply to petitions filed pursuant to subparagraph (II)(A), (II)(D), or (III)(B) of this paragraph (c).
      5. No officer or employee of the division shall disclose the names of any signers to a petition or disclose how any person voted in an election to any person outside the division except pursuant to a court order or subpoena issued by a governmental authority or a court, and any such officer or employee who violates such nondisclosure provisions or who refuses to call an election pursuant to this paragraph (c) or prevents or conspires to prevent such call of an election commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
    4. Refuse to bargain collectively with the representatives of his employees in any collective bargaining unit; except that where an employer with reasonable cause files with the division a petition requesting a determination as to bargaining unit representation, he shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to him by the director;
    5. Enter into an all-union agreement except in the manner provided in paragraph (c) of this subsection (1);
    6. Violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award;
    7. Refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employer has accepted;
    8. Discharge or otherwise discriminate against an employee because he has filed charges or given information or testimony in good faith under the provisions of this article;
    9. Deduct labor organization dues or assessments from an employee's earnings, unless the employer has been presented with an individual order therefor, signed by the employee personally and terminable at any time by the employee's giving at least thirty days' written notice of such termination;
    10. Employ any person to spy upon employees or their representatives respecting their exercise of any right created or approved by this article;
    11. Make, circulate, or cause to be circulated a blacklist as described in section 8-2-110;
    12. Commit any crime or misdemeanor in connection with any controversy as to employment relations;
    13. Require a potential employee to furnish preemployment application information regarding said applicant's record of civil or military disobedience, unless any such matters resulted in a plea of guilty or a conviction by a court of competent jurisdiction.
  2. It is an unfair labor practice for an employee, individually or in concert with others, to:
    1. Coerce or intimidate an employee in the enjoyment of his legal rights, including those guaranteed in section 8-3-106, or to intimidate his family or any member thereof, picket his domicile, or injure the person or property of such employee or his family or of any member thereof;
    2. Coerce, intimidate, or induce any employer to interfere with any of his employees in the enjoyment of their legal rights, including those guaranteed in section 8-3-106, or to engage in any practice with regard to his employees which would constitute an unfair labor practice if undertaken by him on his own initiative;
    3. Violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award;
    4. Refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employees or their representatives accepted;
    5. Cooperate in engaging in, promoting, or inducing picketing, boycotting, or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike;
    6. Hinder or prevent, by mass picketing, threats, intimidation, force, or coercion of any kind, the pursuit of any lawful work or employment; or to obstruct or interfere with entrance to or egress from any place of employment; or to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance;
    7. Engage in a secondary boycott, or to hinder or prevent, by threats, intimidation, force, coercion, or sabotage, the obtaining, use, or disposition of materials, equipment, or services, or to combine or conspire to hinder or prevent, by any means whatsoever, the obtaining, use, or disposition of materials, equipment, or services;
    8. Take, retain, or remain in unauthorized possession of property or any part thereof of the employer, or to engage in any concerted effort to interfere with production, except by leaving the premises in an orderly manner for the purpose of going on strike;
    9. Engage in a sit-down strike on the premises or property of the employer;
    10. Fail to give the notice of intention to strike provided in section 8-3-113;
    11. Commit any crime or misdemeanor in connection with any controversy as to employment relations;
    12. Demand or require any stand-in employee to be hired or employed by an employer, or to demand or require that the employer employ or pay for an employee to stand by or stand in for work being done by other employees, or to require the employer to employ or pay for any employee not required by the employer or necessary for the work of the employer;
    13. Do or cause to be done, on behalf of or in the interest of employers or employees, or in connection with or to influence the outcome of any controversy as to employment relations, any act prohibited by subsections (1) and (2) of this section.
  3. It is an unfair labor practice for an employee, individually or in concert with others, or for a labor organization or any of its agents to:
    1. Induce or encourage the employees of an employer to engage in a strike or concerted refusal in the course of their employment, or by any means to force or require an employer or any one or more employees to refrain from or prevent the use of any material, device, tool, or equipment intended or calculated to reduce the cost of the work;
    2. Require or force an employer to use any materials or do any work or render any service in connection with any task, job, work, or service as a condition of using any labor-saving device, equipment, tool, or instrument in the performance of such task, job, work, or service;
    3. Impose on any employee any fine, penalty, or forfeiture because such employee has used, is using, or has attempted to use a labor-saving device;
      1. Engage in or induce or encourage employees of any employer to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any service where an object thereof is forcing or requiring any employer to assign particular work to employees in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class unless such employer is failing to conform to an order of the director or certification determining the bargaining representative for employees performing such work; but nothing contained in this subsection (3) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer). Whenever a complaint is filed charging that any person or labor organization is engaged in the unfair labor practice defined in this paragraph (d), the director shall hear and determine the dispute concerning the assignment of work out of which such complaint arises, unless within ten days the parties to the dispute provide evidence to the director that the dispute is properly adjusted, in which case the complaint shall be dismissed by the director.
      2. Upon the filing of a complaint under this paragraph (d), the director shall make a preliminary investigation, and, if he finds that there is reasonable cause that the complaint is true, he may issue an order directing that the employees or labor organization cease and desist from striking, picketing, or refusing to handle or work on goods pending a resolution by the director of the dispute out of which the complaint arises.
      3. Upon the failure or refusal of any person or labor organization against whom such order is issued to comply with this order or direction, the district court of the district wherein the strike, picketing, or refusal to handle or work on goods takes place may, upon application of the director, issue injunctive relief in the manner provided in the Colorado rules of civil procedure for courts of record in Colorado.
    5. With regard to the entirety of this subsection (3), the following shall apply: Such material, device, tool, or equipment is germane to the employees' craft and not injurious to the employees' health and safety or the public generally, and nothing in this subsection (3) shall negate the rights of an employer and a labor organization to bargain collectively pursuant to subsection (1)(d) of this section.
  4. It is an unfair labor practice to do or cause to be done, on behalf of or in the interest of employers or employees, or in connection with or to influence the outcome of any controversy as to employment relations, any act prohibited by subsections (1), (2), and (3) of this section.

Source: L. 43: p. 400, § 6. CSA: C. 97, § 94(6). CRS 53: § 80-5-6. L. 63: p. 619, § 1. C.R.S. 1963: § 80-4-6. L. 69: p. 596, § 75. L. 71: p. 887, § 1. L. 77: (1)(c) amended, p. 419, § 2, effective June 29. L. 2002: (1)(c)(V) amended, p. 1466, § 18, effective October 1. L. 2021: (1)(c)(II)(A) and (1)(c)(II)(B) amended, (SB 21-087), ch. 337, p. 2185, § 9, effective June 25.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(c)(V), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Extent to Which Taft-Hartley Act Has Superseded State Labor Laws", see 28 Dicta 47 (1951). For article, "The Regional Transportation District Strike and the Colorado Labor Peace Act: A Study in Public Sector Collective Bargaining", see 54 U. Colo. L. Rev. 203 (1983).

This section lists a number of things denominated "unfair labor practices". Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

These may arise because of conduct on the part of management as well as on the part of employees of a particular employer, or on the part of third parties. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957); Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

The labor management relations act (29 U.S.C. § 158) has as its facsimile parts of this section. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Private right of action against criminal labor statute violator. The general assembly's broad definition of unfair labor practices indicates an intent to create a private right of action to anyone who can prove by a preponderance of the evidence that a defendant has violated a criminal labor statute. Rawson v. Sears, Roebuck & Co., 530 F. Supp. 776 (D. Colo. 1982); Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982).

Not exception to rule of employment at will. Statutory pronouncement which makes it unlawful "to coerce or intimidate an employee in the enjoyment of his legal rights" is a broad, general statement of policy which is inadequate to justify adoption of an exception to the rule that an indefinite general hiring is terminable at will by either party to the employment. Corbin v. Sinclair Mktg., Inc., 684 P.2d 265 (Colo. App. 1984).

II. UNFAIR LABOR PRACTICES FOR EMPLOYERS.
A. Interference with Right of Self-organization.

Law reviews. For comment on Bennett's Restaurant v. Indus. Comm'n appearing below, see 30 Dicta 307 (1953).

Subsections (1)(a) and (1)(c) do not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

But an employer may not, under cover of this right, intimidate or coerce its employees with respect to their self-organization and representation. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

And on the other hand, the labor board is not entitled to make its authority a pretext for interfering with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

Evidence held to show that employees were wrongfully discharged for organizational activities. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

B. Contribute Financial Support.

An employer cannot be compelled to join a union if contributions in the form of dues and initiation fees are required, since the financial support of unions consists chiefly, if not wholly, of the dues paid by its members, and if dues paid by members would constitute financial support for a union, there is no reason why dues paid by employers would not also constitute financial support of a union. Journeymen Barbers Local 205 v. Indus. Comm'n, 128 Colo. 121, 260 P.2d 941 (1953).

However, the term "financial support" is much broader than the mere payment of dues and covers and includes financial support of any kind, character, or description, whether large or small in amount. Journeymen Barbers Local 205 v. Indus. Comm'n, 128 Colo. 121, 260 P.2d 941 (1953).

C. All-union Agreements.

Colorado does not have a right-to-work law. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

So an agreement requiring membership in a labor organization as a condition of employment is under certain circumstances permitted by this section. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

The regulation of union security provisions is not a matter of exclusive federal concern, but states are free to pursue their own more restrictive policies. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

The provisions of this section are an important incident of the state's power to prohibit the application of certain union security provisions, which power has not been supplanted by federal law. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

The procedures for establishing a collective bargaining unit under this article are merely an incident of the state's power to prohibit the application of union security agreements under the permissive grant of authority contained in section 14(b) of the federal Taft-Hartley act. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Subsection (1)(c) is a manifestation of the legislative intent to protect the working man's right to freely chart his own course with regard to labor organization activities in that it severely restricts the circumstances in which an employee may be subjected to "all-union agreements". Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Application of section. This section applies to union security clauses in collective bargaining agreements negotiated and executed by multi-state employers engaged in interstate commerce and doing business in Colorado. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Regulation of all-union agreements not limited to closed shop agreements. In view of the emphatic language contained in the legislative declaration of rights of employees in § 8-3-106, regulation of "all-union agreements" is not limited to closed shop agreements. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

What is considered "all-union agreement". Any financial obligation imposed upon employees pursuant to a collective bargaining agreement executed and sought to be enforced in Colorado has features of compulsory unionism and as such is to be considered an "all-union agreement" under § 8-3-104 (1). Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Compulsory monetary support of a union is the "practical equivalent" of compulsory membership. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

The application of § 8-3-104 (4) to the union security provisions of this article is severable from its application in other contexts of the act. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

"Collective bargaining unit" for purposes of subsection (1)(c). In Colorado a "collective bargaining unit", for purposes of the union security agreement provision of this article, may be something different than a collective bargaining unit for other purposes of labor-management relations. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Such unit is condition precedent to right to enter into all-union agreement. A collective bargaining unit, as defined by § 8-3-104 (4), is a condition precedent to any labor organization's right to enter into an all-union agreement with an employer under Colorado law. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

And must be established pursuant to § 8-3-104 (4). In the context of subsection (1)(c), a collective bargaining unit is a unique entity which may only be established pursuant to the requirements of § 8-3-104 (4). Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Collective bargaining unit recognized only by secret ballot election. A secret ballot election, as described by § 8-3-104 (4), is the exclusive method by which a collective bargaining unit subject to the "all-union" referendum [now election] provisions of subsection (1)(c) may be recognized. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Where election to be conducted. Subsection (1)(c) plainly directs that the referendum [now election] should be conducted among the employees of a collective bargaining unit. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

Regulations protecting right to petition for ratification election. The director of the division of labor does not have the authority to adopt rules protecting employees' right to petition for a ratification election under subsection (1)(c)(II)(D); the authority to promulgate such regulations is with the industrial commission. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

Required employer conduct in all-union agreement election. While subsection (1)(c) specifies notice to the employees, a period of time for circulating petitions requiring an election, and the number of signatures which must be obtained before an election concerning ratification of an all-union agreement will be required, it does not require any course of action by the employer, let alone such specific conduct as the provision of bulletin board space or access to lists of employees. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

Withholding of access to employee lists. Where access to company bulletin boards is subject to federal determination because of a collective bargaining agreement and access to lists of employees is restricted by National Labor Relations Board procedures, an employer's withholding of such access from petitioners for a ratification election is not an unfair labor practice under this section. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

Clauses of collective bargaining agreements were invalid where they were not approved through an all-union referendum [now election] by an appropriately designated employee group. Commc'ns Workers of Am. v. W. Elec. Co., 191 Colo. 128, 551 P.2d 1065 (1976), appeal dismissed, 429 U.S. 1067, 97 S. Ct. 799, 50 L. Ed. 2d 785, reh'g denied, 430 U.S. 923, 97 S. Ct. 1341, 51 L. Ed. 2d 602 (1977).

III. UNFAIR LABOR PRACTICES FOR EMPLOYEES.
A. In General.

Provisions restricting mass picketing are contained in subsection (2). City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

B. Intimidation of Employees.

Harassment incidents insufficient basis to enjoin agreement. Three relatively isolated incidents of harassment during the first 10 days of petitioning activity, none of which was shown to have had a widespread impact on the willingness of employees to sign the petitions, and none of which was physically violent, are not sufficient basis for enjoining operation of an all-union agreement after failure to obtain sufficient petition signatures for a separate ratification election. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

Subsection (2)(a) of this section, when read together with §§ 8-3-118(1) and 8-3-110(1), allows the trial court to enjoin the union and its members from engaging in an unfair labor practice. CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

C. Picketing.

Law reviews. For article, "Mass Picketing and the Constitutional Guarantee of Freedom of Speech", see 22 Rocky Mt. L. Rev. 28 (1949). For article, "A Review of the 1959 Constitutional and Administrative Law Decisions", see 37 Dicta 81 (1960).

Picketing may be lawful or unlawful depending upon the purpose of the picketing and the manner in which it is conducted. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

And subsection (2)(e) declaring that to cooperate in, engaging in, or inducing picketing is an unfair labor practice must be construed in harmony with §§ 8-3-103 and 8-3-109 (2) as to the right of free speech, if possible; and so construed, the work "picketing" as employed in the labor peace act must be held as intended in its coercive and not in its persuasive, sense. Otherwise the limitation on picketing constitutes a limitation on the right to express views concerning labor relationships and invades the right to freedom of speech, contrary to the explicit provisions of these sections. Denver Milk Producers v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947).

Hence, it is not an unfair labor practice for members of a labor union to peacefully picket an employer of nonunion labor even though there is no immediate employer-employee dispute, inasmuch as § 8-3-109 (2) preserves the right of free speech concerning "any labor relationship" and one need not be in a "labor dispute" as defined by § 8-3-104 (13)(a) to have a right under the fourteenth amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Injunction against peaceful residential picketing held unconstitutional under federal first amendment and equal protection guarantees. CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd on other grounds, 23 P.3d 1197 (Colo. 2001).

But picketing that is not peaceful may be enjoined as a valid exercise of the state's police power. CF&I Steel, L.P. v. United Steel Workers of Am., 23 P.3d 1197 (Colo. 2001).

Blanket prohibition against residential picketing in subsection (2)(a) is unconstitutional under federal first amendment and equal protection guarantees. CF&I Steel, L.P. v. United Steel Workers of Am., 23 P.3d 1197 (Colo. 2001).

"Peaceable picketing" means simply, tranquil conduct, conduct devoid of noise or tumult, the absence of a quarrelsome demeanor, a course of conduct that does not violate or disturb the public peace. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

One cannot be convicted of violating a municipal ordinance regulating picketing, inasmuch as the general assembly has enacted comprehensive legislation regulating picketing in situations where labor disputes are involved and this legislation completely covers the field. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

D. Hindering Place of Employment by Mass Picketing, etc.

Subsection (2)(f) makes an unfair labor practice of mass picketing, threats, intimidation, force, or coercion to hinder or prevent any lawful work or employment. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

"Illegal picketing" as by "mass picketing", defined. Boisterous conduct, the use of vile language, bellicose demeanor, threats, violence, coercion, intimidation, shouting and interference with the use of premises or impeding a public highway, as by mass picketing, which is the use of a large number of pickets, is not peaceable picketing, but is illegal picketing. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

8-3-109. What are not unfair labor practices.

  1. It is not an unfair labor practice for any employer to refuse to grant a closed shop or all-union agreement or to accede to any proposal therefor as provided in this article.
  2. The right of both employer and employee freely to express, declare, and publish their respective views and proposals concerning any labor relationship shall not be abrogated or limited by this article, nor shall the exercise of such right constitute an unfair labor practice. No strike shall be lawful unless it is authorized by a majority vote of the employees in the union involved taken by secret ballot such as is provided in this article.
  3. It shall not be an unfair labor practice for an employer engaged primarily in the building and construction industry to enter into an all-union agreement, except an agreement providing for an agency shop or modified agency shop, with a labor organization, which agreement is limited in its coverage to employees who, upon their employment, will be engaged in the building and construction industry, if a copy of such agreement is filed with the director and certified by him as provided in section 8-3-108 (1)(c)(II)(B). Such agreement may be ratified as provided in section 8-3-108 (1)(c)(II)(C) or terminated by the director as provided in section 8-3-108 (1)(c)(III).

Source: L. 43: p. 403, § 7. CSA: C. 97, § 94(7). CRS 53: § 80-5-7. C.R.S. 1963: § 80-4-7. L. 77: (3) added, p. 422, § 3, effective June 29.

ANNOTATION

Subsection (2) of this section excludes from the category of "unfair labor practice" the right of both employer and employee freely to express, declare, and publish their respective views and proposals concerning any labor relationship. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Subsection (2) is a recognition of the constitutional right of every citizen. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Peaceful picketing is a form of free speech and as such protected by constitutional guaranty, for to hold otherwise would be to fix a limitation on the right to express views concerning a labor relationship, and invade the right of freedom of speech contrary to the explicit provisions of this section. People v. Harris, 104 Colo. 386, 91 P.2d 989 (1939); Local 13, Teamsters v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P.2d 436 (1940); Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Moreover, this right of free communication cannot be mutilated by denying it to workers in a "dispute" with an employer even though they are not in his employ, inasmuch as a state cannot exclude working men from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him, for the interdependence of economic interest of all engaged in the same industry has become a commonplace. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Therefore, this section does not prohibit picketing by a labor union of an employer of nonunion labor even though there is no immediate employer-employee dispute, as such a ban of free communication is inconsistent with the guarantee of freedom of speech. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

However, picketing must be "peaceful", and "peaceful picketing" means simply, tranquil conduct, conduct devoid of noise or tumult, the absence of a quarrelsome demeanor, a course of conduct that does not violate or disturb the public peace. As a necessary corollary, boisterous conduct, the use of vile language, bellicose demeanor, threats, violence, coercion, intimidation, shouting and interference with the use of premises or impeding a public highway, as by mass picketing, which is the use of a large number of pickets, is not peaceable picketing, but is illegal picketing. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

8-3-110. Prevention of unfair labor practices.

  1. Any controversy concerning unfair labor practices may be submitted to the division in the manner and with the effect provided in this article; but nothing in this article shall prevent the pursuit of equitable or legal relief in courts of competent jurisdiction, nor shall it be any ground for refusal of such relief that all of the administrative remedies provided in this article before the division have not been exhausted.
  2. Upon the filing with the division by any party in interest of a complaint in writing on a form provided by the division charging any person with having engaged in any specific unfair labor practice, the division shall mail a copy of such complaint to all persons so charged. Any other person claiming interest in the dispute or controversy, as an employer, an employee, or representative thereof, shall be made a party upon application. The director may bring in additional parties by service of a copy of the complaint. Only one such complaint shall issue against a person with respect to a single controversy, but any such complaint may be amended in the discretion of the director at any time prior to the issuance of a final order based thereon. The persons so complained of have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. The director shall fix a time for the hearing on such complaint, which shall not be less than ten nor more than forty days after the filing of such complaint. Notice shall be given to the complainant and to each party named in the pleadings by service on him personally or by mailing a copy thereof to him at his last known post office address at least ten days before such hearing. In case a party in interest is located without the state and has no known post office address within this state, a copy of the complaint and copies of all notices shall be filed in the office of the secretary of state and shall also be sent by registered mail to the last known post office address of such party. Such filing and mailing shall constitute sufficient service with the same force and effect as if served upon the party located within this state. Such hearing may be adjourned from time to time in the discretion of the director and hearings may be held at such places as the director designates. The director may initiate and file any such complaint of his own motion or at the request of any interested person. Should the director file such a complaint on request, he shall not disclose the name or interest of the person upon whose request the complaint is filed, if in his judgment such disclosure would tend to prejudice the interest of any person who may be affected by any order that the director may enter upon such complaint.
  3. The director has the power to issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by the Colorado rules of civil procedure, and all such depositions shall be taken upon commissions issued by the director. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to the subpoena of the director on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture under the laws of the state of Colorado. No individual shall be prosecuted or subjected to any penalty or forfeiture for any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, before the director in obedience to a subpoena issued by him. An individual so testifying shall not be exempt from prosecution and punishment for perjury in the first degree committed in so testifying.
  4. Any person who willfully and unlawfully fails or neglects to appear or testify or to produce books, papers, and records as required, upon application to a district court, shall be ordered to appear before the director to testify or produce evidence if so ordered, and failure to obey such order of the court may be punished by the court as a contempt thereof.
  5. Each witness who appears before the director by his order or subpoena shall receive for his attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon presentation of properly verified vouchers approved by the director and charged to the proper appropriation for the division.
  6. A complete record shall be kept of all proceedings had before the director, and all testimony and proceedings shall be taken down by the reporter appointed by the director. Such proceedings shall not be governed by the technical rules of evidence, but by such rules as are prescribed by the director for administrative hearings.
  7. After the final hearing the director shall promptly make and file his findings of fact upon all of the issues involved in the controversy and his order which shall state his determination as to the rights of the parties. Pending the final determination of any controversy before him, the director, after hearing, may make interlocutory findings and orders, which may be enforced in the same manner as final orders. Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed; suspend his rights, immunities, privileges, or remedies granted or afforded by this article as the director may specify, but not more than one year; and require an employer to take such affirmative action, including reinstatement of employees with or without pay, as the director may deem proper. Any order may further require such person to make reports from time to time showing the extent to which he has complied with the order.
  8. The director may authorize a deputy, referee, or administrative law judge appointed pursuant to part 10 of article 30 of title 24, C.R.S., to take evidence and to make findings and report them to the director. Any party in interest who is dissatisfied with the findings or order of the director may seek judicial review pursuant to section 24-4-106, C.R.S.
  9. The director, on his own motion, may set aside, modify, or change any of his findings or orders at any time within twenty days from the date thereof if he discovers any mistake therein or upon the ground of newly discovered evidence.
  10. If any party fails or neglects to obey an order of the director while the same is in effect, the director may file a complaint in the district court of the county wherein such person resides or usually transacts business for the enforcement of such order for appropriate temporary relief or restraining order, and shall certify and file in the court the record in the proceedings, including all documents and papers on file in the matter, and pleadings and testimony upon which such order was entered, and the findings and order of the director. Upon the filing the director shall cause notice thereof to be served upon such party by mailing a copy to his last known post office address, and thereupon the court has jurisdiction of the proceedings and of the question determined therein. Said action may thereupon be brought on for hearing upon such order by the director serving ten days' written notice upon the respondent, subject, however, to the Colorado rules of civil procedure for a change of the place of trial or the calling in of another judge. Upon such hearing the court may confirm, modify, or set aside the order of the director and enter an appropriate decree. No objection that was not urged before the director shall be considered by the court unless the failure or neglect to urge such objection is excused because of extraordinary circumstances. The findings of fact made by the director, if supported by credible and competent evidence in the record, shall be conclusive. The court in its discretion may grant leave to adduce additional evidence before the court where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the director. The director may modify his findings as to facts, or make new findings by reason of such additional evidence, and he shall file such modified or new findings with the same effect as his original findings and shall file his recommendations, if any, for the modification or setting aside of his original order. The court's judgment and decree shall be final; except that the same shall be subject to appellate review as provided by law.
  11. Repealed.
  12. Repealed.
  13. Repealed.
  14. Repealed.
  15. Substantial compliance with the procedures of this article is sufficient to give effect to the orders of the director, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.
  16. The right of any person to proceed under this section and section 8-3-121 shall not extend beyond six months from the date of the specific act or unfair labor practice alleged.
  17. The director also has the power by himself and on his own motion to initiate proceedings in the manner provided in this section. It is likewise the duty of the director to so initiate a proceeding in his own name whenever complaint is made to him by any party in interest if it appears to the director that the disclosure of the name of the complainant, either as an employee or group of employees or as an employer or agent or representative of the employer, would jeopardize the rights or interests or standing of any party in interest. The proceedings so initiated by the director shall be conducted in the same manner and have the same effect as provided for in this section.
    1. The director has the power and it is his duty in carrying out the public policy of the state, either upon his own initiative or upon the complaint of any party in interest or any organization or persons representing any public interests, if there is picketing which in the opinion of the director might tend to lead to riots, disturbances, or assaults or disturb public peace or injure the property or persons of individuals, to limit the number of pickets that may be permitted; and to prescribe the distance from any plant, entrance, or exit where such picketing may be permitted; and to otherwise prescribe limits to such picketing, including not only the number of persons picketing but also the manner or method thereof; and to prevent the use of weapons of any kind or threats or intimidation.
    2. Upon the failure or refusal of any person against whom any such order or direction is issued to comply with such order or direction, the district court of the district wherein the picketing takes place or the violation occurs, upon application of the director, may issue injunctive relief in the manner provided in the Colorado rules of civil procedure for courts of record in Colorado.

Source: L. 43: p. 403, § 8. CSA: C. 97, § 94(8). CRS 53: § 80-5-8. C.R.S. 1963: § 80-4-8. L. 69: p. 596, § 76. L. 72: p. 561, § 27. L. 77: (8) amended, p. 305, § 1, effective June 10; (16) amended, p. 423, § 4, effective June 29. L. 86: (6), (8), and (15) amended, p. 471, § 26, effective July 1; (11), (12), (13), and (14) repealed, p. 502, § 125, effective July 1. L. 87: (8) amended, p. 937, § 6, effective March 13.

Cross references: For fees and mileage of witnesses, see §§ 13-33-102 and 13-33-103; for the taking of depositions, see C.R.C.P. 26-37; for punishment of contempt, see C.R.C.P. 107; for issuance of injunctions, see C.R.C.P. 65.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment to this section which placed the duty of enforcing and administrating the labor peace act on the director of the division of labor instead of the industrial commission.

Municipalities do not have the power to adopt ordinances regulating activities connected with labor disputes. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

This act does not contain a comprehensive administrative scheme that precludes assertion of claim for wrongful discharge in violation of public policy; accordingly, the filing of a claim under this act does not preclude litigation of other causes of action arising out of the same circumstances. Ferris v. Local 26, 867 P.2d 38 (Colo. App. 1993).

II. FEDERAL PREEMPTION.

Law reviews. For article, "The Extent to Which Taft-Hartley Act Has Superseded State Labor Laws", see 28 Dicta 47 (1951). For article, "Federal Preemption Under the NLRA: A Rule In Search of A Reason", see 62 Den. U. L. Rev. 531 (1985).

Federal authority is solitary and exclusive in situations where both state and federal laws forbid certain labor conduct and provide machinery for enforcement. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Thus the state cannot supply a congruous yet rival remedy to that furnished by the federal act. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

And there can be no concurrency of remedy, because the federal remedy, when applicable, is preemptive and solitary. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

The labor management relations act in essence establishes exclusion of state power in matters involving an unfair labor practice affecting commerce. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

And exclusive primary jurisdiction to pass on a union's picketing is delegated by the Taft-Hartley Act to the national labor relations board. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

Notwithstanding, power is vested in the national labor relations board to "cede" jurisdiction to a state agency of a case having to do with a labor dispute affecting commerce if the state has a statute applicable to the problem not inconsistent with the federal act. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

But until cession is made, the state is without such power. Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

But there remains in the state power to regulate picketing. Although much of the area of control and regulation of labor disputes has been preempted by federal legislation, there remains in the states, within the confines of constitutional limitations, certain power to regulate picketing and to protect public safety in so doing. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

For Taft-Hartley Act is not exclusive in controlling violence. With the passage of the Taft-Hartley Act in 1947, Congress recognized that labor unions also might commit unfair labor practices to the detriment of employees, and prohibited, among other practices, coercion of employees who wish to refrain from striking; but this amendment did not eliminate a state's power to control picketing activities through state labor statutes, as section 8 (b)(1) of the Taft-Hartley Act is not the exclusive method of controlling violence even against employees, much less violence interfering with others approaching an area where a strike is in progress. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

Nor should the fact that a union commits a federal unfair labor practice while engaging in violent conduct prevent state from taking steps to stop the violence; for the states are the natural guardians of the public against violence, and it is the local communities that suffer most from the fear and loss occasioned by coercion and destruction. Hence, an act of congress cannot be interpreted to leave them powerless to avert such emergencies without compelling directions to that effect. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

Furthermore, where union activity is not protected by the federal act, it is not immunized from state action. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

State laws adopted pursuant to 29 U.S.C. § 164(b) represent an area where state laws will control. Ruff v. Kezer, 199 Colo. 182, 606 P.2d 441 (1980).

III. COMPLAINTS.
A. Initiation of Complaint.

The industrial commission is authorized to investigate every charge which alleges an unfair labor practice. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

B. Hearing.

In ascertaining whether an employee was discharged because of union activities the industrial commission may consider circumstantial, as well as direct, evidence, but when circumstantial evidence is relied on there must be evidence of circumstances from which the commission may conclude with reasonable certainty that the employee was discharged because of union activity. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

And the fact that some of the evidence relating to a discriminatory discharge is hearsay affords no basis for objecting to the finding. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

However, mere suspicion or conjecture alone is not sufficient on which to base a finding of discriminatory discharge. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

The division of labor's duty to hold hearings and to make decisions determining the rights of parties necessarily and implicitly includes the authority to interpret statutes pertinent to the dispute. Denver Local 2-477 v. Metro Wastewater Reclamation Dist., 7 P.3d 1042 (Colo. App. 1999).

C. Remedies.

Reinstatement of employees wrongfully discharged will not compel an employer to operate in a manner that would be contrary to business judgment with a totalitarian result of confiscation where no such result appears from the record, for the business judgment of employers must always be limited by the applicable requirements of statutes and the very purpose of the labor peace act is to restrict the business judgment of both employers and employees in the promotion of the welfare of industry and of the public. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

However, an order for reinstatement of such employees does not necessarily require their continuance for any specified time in future employment. Rather, they are to return to the same status which existed at the time of their discharge, subject to termination of their employment upon valid grounds not contrary to the provisions of the labor peace act at any time thereafter. UMW v. Sunlight Coal Co., 129 Colo. 374, 270 P.2d 776 (1954).

IV. POST HEARING.

A complaint for review has to be filed within 30 days under former provisions of section unless the time was extended by reason of prejudice "because of exceptional delay in the receipt of a copy of order of the commission". Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

And misadvice of attorney that there is 60 days to seek review was not a ground for extension under this section. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

By failing to seek review within 30 days the right of appeal was lost. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

On appeal the question to be resolved was whether the findings were supported by any credible and competent evidence in the record. Bennett's Restaurant v. Indus. Comm'n, 127 Colo. 271, 256 P.2d 891 (1953).

And court errs in making its own findings. The court erred in making its own findings where the matter was not one in which the testimony was short and undisputed. Indus. Comm'n v. Sheard, 170 Colo. 76, 459 P.2d 127 (1969).

V. REGULATION OF PICKETING.
A. In General.

The state, through its general assembly and courts, can reasonably regulate picketing and rights of assembly with proper constitutional safeguards for those affected thereby, for picketing is not an absolute right at all times and places. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

And a bona fide dispute must be shown to exist to allow picketing. Int'l Bhd. of Teamsters v. Publix Cab Co., 119 Colo. 208, 202 P.2d 154 (1949).

Declaratory judgment as to validity of subsection (18) refused absent a concrete situation. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 115 P.2d 145 (1944).

B. Injunctions.

Law reviews. For article, "Labor Injunctions Under the Colorado Labor Peace Act", see 26 Dicta 63 (1949).

While investigating unfair labor practices, the director has jurisdiction to issue restraining orders or injunctions to enjoin strikes and lockouts, but not peaceful picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

For this section does not provide for issuance of injunctions to restrain peaceful picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971); CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

Subsection (1) of this section, when read together with §§ 8-3-108(2)(a) and 8-3-118(1), allows the trial court to enjoin the union and its members from engaging in an unfair labor practice. CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

8-3-111. Protection of employees when authority acquires certain operations.

  1. Before any authority may acquire and operate any property of a privately or publicly owned mass transportation system, fair and equitable protective arrangements, as determined by the director, shall be made to insure certain rights of employees. Such protective arrangements shall include, without being limited to, such provisions as may be necessary to accomplish the following objectives:
    1. The preservation of existing rights, privileges, and benefits of employees under existing collective bargaining agreements between the mass transportation system and the employees thereof, including the continuation of all pension rights and benefits of the employees and their beneficiaries;
    2. The continuation of all collective bargaining in any situation existing at the time of such acquisition and the assurance of employment of all the employees of such mass transportation system so acquired;
    3. The protection of all individual employees with respect to their employment, including priorities, seniorities, and right of advancement when in agreement with any existing collective bargaining agreement;
    4. Training and retraining programs of employees and managing personnel.
  2. The contract whereby an authority acquires any property of a privately or publicly owned mass transportation system shall specify with particularity, the terms and conditions of all the protective arrangements set forth in this section, including all other protective arrangements which may be added through collective bargaining or by direction of the director.
  3. The determination of the sufficiency of protective arrangements shall be made by the director in accordance with such rules and regulations as the commission may from time to time establish.

Source: L. 43: p. 409, § 9. CSA: C. 97, § 94 (9). CRS 53: § 80-5-9. L. 65: p. 811, § 3. C.R.S. 1963: § 80-4-9. L. 69: p. 600, § 77.

8-3-112. Arbitration.

  1. Parties to a labor dispute may agree in writing to have the director act as arbitrator or to name arbitrators to arbitrate all or any part of such dispute, and thereupon the director shall have the power so to act. The director shall appoint as arbitrators only competent, impartial, and disinterested persons. Proceedings in any such arbitration shall be as provided by the rules of arbitration under the Colorado rules of civil procedure.
  2. All parties to any labor dispute when the employer is an authority shall submit to arbitration upon written order of the director when such written order is the result of the procedure set forth in section 8-3-113 (3). Any order so given shall be subject to appeal within five days of the receipt of such order by either the employee's representative or the authority, who are parties in interest. Appeal of the order shall be made to the district court in the judicial district where the most substantial number of the employees concerned are employed. Such court shall either confirm, deny, amend, or continue the order within sixty days following the application for appeal. The results of any arbitration conducted in accordance with the procedure set forth in this article shall be binding upon all parties in interest with the right of appeal to any court of competent jurisdiction on the grounds that the director or arbitration board has been unfair, capricious, or unjust in its conduct, determinations, or award.

Source: L. 43: p. 409, § 10. CSA: C. 97, § 94(10). CRS 53: § 80-5-10. C.R.S. 1963: § 80-4-10. L. 65: p. 812, § 4. L. 69: p. 600, § 78.

Cross references: For director's duty in relation to arbitration, see § 8-1-123.

ANNOTATION

Law reviews. For note, "Judicial Intervention in Arbitration Enforcement Cases - The Tenth Circuit Expands Upon the Limited Judicial Review Standard of Enterprise Wheel", see 62 Den. U. L. Rev. 593 (1985).

This section is constitutional. Reg'l Transp. Dist. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

Provisions for an arbitrator do not constitute too broad a delegation of legislative authority since arbitrator's discretion to set terms and conditions of employment is limited by sufficient standards of judicial review. Reg'l Transp. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

Availability of judicial review of arbitrator's award and of director's decision to order arbitration under this section imposed sufficient standards and safeguards. Therefore, no unlawful delegation of legislative authority occurred. Reg'l Transp. Dist. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

RTD is not a municipality and is not performing a municipal function within the meaning of section 35 of article V and therefore, the nondelegation requirement does not prevent the general assembly from requiring binding interest arbitration pursuant to this section. Reg'l Transp. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

8-3-113. Mediation.

  1. The director has power to appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon his own initiative or upon the request of one of the parties to the dispute. It is the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the director has any power of compulsion in mediation proceedings. The director shall provide necessary expenses and order reasonable compensation for such mediators as he may appoint.
  2. Where, as provided by this article, the exercise of the right to strike by the employees of any employer engaged in the state of Colorado in the production, harvesting, or initial processing, the latter after leaving the farm, of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employees shall give to the division at least thirty days' notice of their intention to strike, and, in the case of employees in all other industries or occupations, at least twenty days' notice of their intention to strike. The division shall immediately notify the employer of the receipt of such notice. Upon receipt of such notice, the director shall take immediate steps to effect mediation, if possible. In the event of the failure of the efforts to mediate, the director shall endeavor to induce the parties to arbitrate the controversy. Any strike called or made effective before the expiration of twenty days from the date of such notice shall constitute an unfair labor practice.
  3. Where the exercise of the right to strike is desired by the employees of any authority, the employees or their representatives shall file with the division written notice of intent to strike not less than forty calendar days prior to the date contemplated for such strike. Within twenty days of the filing of the notice, the director shall enter an order allowing or denying the strike based on the grounds of whether or not such strike would interfere with the preservation of the public peace, health, and safety in accordance with rules and regulations of the division. Any order denying a strike under this section shall include an order to arbitrate in accordance with section 8-3-112. Such arbitration shall be entered into not later than one hundred days from the filing of the notice of intent to strike. Immediately upon receipt of a notice of intent to strike, the director shall take steps to effect mediation, if possible. In the event of failure to mediate, the director shall endeavor to induce the parties to arbitrate the controversy. Any strike before the expiration of forty days from the giving of notice of intent to strike or in violation of an order of the director, unless such order is changed on appeal or otherwise, shall constitute an unfair labor practice.
  4. The division shall prescribe reasonable rules of procedure for mediation under this section.

Source: L. 43: p. 410, § 11. CSA: C. 97, § 94(11). CRS 53: § 80-5-11. C.R.S. 1963: § 80-4-11. L. 65: p. 813, § 5. L. 69: p. 601, § 79. L. 86: (3) and (4) amended, p. 471, § 27, effective July 1.

ANNOTATION

This section is constitutional. Reg'l Transp. Dist. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

The Labor Peace Act provides that the director may deny the right to strike under circumstances that would interfere with the public peace, health, and safety, but balances the denial with the provision for mandatory arbitration. Reg'l Transp. v. Dept. of Labor, 830 P.2d 942 (Colo. 1992).

The reference to "employees in all other industries or occupations" in this section is so clear and so unambiguous as to the intention of the general assembly not to restrict the labor peace act to only industry and trade that it is unnecessary to even consider the usual rules of construction where ambiguities and uncertainties are found in statutory provisions. Indus. Comm'n v. Wallace Vill. for Children, 165 Colo. 10, 437 P.2d 62 (1968).

Declaratory judgment as to validity of subsection (2) refused in absence of concrete situation. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 155 P.2d 145 (1944).

8-3-114. Duties of attorney general and district attorneys.

Upon the request of the director, the attorney general or the district attorney of the county in which a proceeding is brought before the district court for the purpose of enforcing or reviewing an order of the director shall appear and act as counsel for the director in such proceeding and in any proceeding to review the action of the district court affirming, modifying, or reversing such order.

Source: L. 43: p. 410, § 12. CSA: C. 97, § 94(12). CRS 53: § 80-5-12. C.R.S. 1963: § 80-4-12. L. 69: p. 602, § 80. L. 86: Entire section amended, p. 471, § 28, effective July 1.

8-3-115. Employer and employee committees.

The director, from time to time, may appoint joint, standing, or special committees composed in equal numbers of representatives of employees and employers. The director may refer to any such committee for its study and advice any matters concerning the relations of employers and employees or the operation of this article.

Source: L. 43: p. 410, § 13. CSA: C. 97, § 94(13). CRS 53: § 80-5-13. C.R.S. 1963: § 80-4-13. L. 69: p. 602, § 81.

8-3-116. Interference with director - officer of division.

Any person who willfully assaults, resists, prevents, impedes, or interferes with the director or any officer, deputy, agent, or employee of the division or any of its agencies in the performance of duties pursuant to this article 3 commits a class 2 misdemeanor.

Source: L. 43: p. 411, § 14. CSA: C. 97, § 94(14). CRS 53: § 80-5-14. C.R.S. 1963: § 80-4-14. L. 69: p. 602, § 82. L. 86: Entire section amended, p. 472, § 29, effective July 1. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3140, § 85, effective March 1, 2022.

8-3-117. Existing contracts unaffected.

Nothing in this article shall operate to abrogate, annul, or modify any valid agreement respecting employment relations existing on or before April 1, 1943.

Source: L. 43: p. 411, § 15. CSA: C. 97, § 94(15). CRS 53: § 80-5-15. C.R.S. 1963: § 80-4-15.

8-3-118. Jurisdiction to issue restraining orders or injunctions.

  1. Except as otherwise provided in this article, no court has jurisdiction to issue in any case involving or growing out of a labor dispute any restraining order or temporary or permanent injunction which in specific or general terms prohibits any person from doing, whether singly or in concert, any of the following acts:
    1. Ceasing or refusing to perform any work or to remain in any relation of employment, regardless of any promise, undertaking, contract, or agreement to do such work or to remain in such employment;
    2. Becoming or remaining a member of any labor organization or of any employer organization, regardless of any undertaking or promise as is described in section 8-3-119;
    3. Paying or giving to or withholding from any person any strike or unemployment benefits or insurance or other moneys or things of value;
    4. Aiding, by all lawful means, any person who is being proceeded against in, or is prosecuting any action or suit in, any court of this state;
    5. Giving publicity to and obtaining or communicating information regarding the existence of or the facts involved in any dispute, whether by advertising, speaking, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof;
    6. Ceasing as an organization to patronize any person with whom the organization has a labor dispute or requiring it to employ any person;
    7. Assembling peaceably to do or to organize to do any of the acts specified in this section or to promote lawful interests;
    8. Advising or notifying any person of an intention to do any of the acts specified in this section;
    9. Agreeing with other persons to do or not to do any of the acts specified in this section;
    10. Advising, urging, or inducing, without fraud, violence, or threat thereof, others to do the acts specified in this section, regardless of any such undertaking or promise as is described in section 8-3-119;
    11. Doing in concert any acts specified in this section on the ground that the persons engaged therein constitute an unlawful combination or conspiracy.

Source: L. 43: p. 411, § 16. CSA: C. 97, § 94(16). CRS 53: § 80-5-16. C.R.S. 1963: § 80-4-16.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Law reviews. For article, "Labor Injunctions Under the Colorado Labor Peace Act", see 26 Dicta 63 (1949).

Annotator's note. Since § 8-3-118 is similar to repealed CSA, C. 97, §§ 76-84, relevant cases construing those provisions have been included in the annotations to this section.

This section does not take away any rights from employees and unions, but bestows upon them additional rights in "labor disputes" not theretofore possessed, as it creates a defense in labor disputes against actions for restraining orders and injunctions not permitted in other disputes. Denver Milk Producers, Inc. v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947).

And it is only in cases involving labor disputes that a court does not have jurisdiction to grant such orders. Denver Milk Producers, Inc. v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947).

For, in the absence of any statute on this subject matter, there is no restriction on the courts in granting restraining orders or injunctions in any case. Denver Milk Producers, Inc. v. Int'l Bhd. of Teamsters, 116 Colo. 389, 183 P.2d 529 (1947).

However, where there is no "labor dispute", as defined in § 8-3-104 (13), between employer and his employees, there is no restraint on the court by virtue of this section to issue an injunction restraining a union's picketing and other acts. Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1948).

Earlier provision held constitutional. Local 13, Teamsters v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P.2d 436 (1940).

But other section which made picketing unlawful held unconstitutional. People v. Harris, 104 Colo. 386, 91 P.2d 989 (1939).

However, provisions protecting activities that are normal incidents of picketing are contained in this section. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

II. FEDERAL PREEMPTION.

Law reviews. For article, "The Extent to Which Taft-Hartley Act Has Superseded State Labor Laws", see 28 Dicta 47 (1951).

The state may not enjoin conduct which has been made an unfair labor practice under the federal statutes. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956); Bldg. Constr. Trades Council v. Am. Bldrs., Inc., 139 Colo. 236, 337 P.2d 953 (1959).

But this rule does not take from the state power to prevent mass picketing, violence, and overt threats of violence, for the dominant interest of the state in preventing violence and property damage cannot be questioned; it is a matter of genuine local concern. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

And such conduct is not subject to the federal board. The state is allowed to enjoin mass picketing, threats of bodily injury and property damage to employees, obstruction of streets and public roads, the blocking of entrance to and egress from a factory, and the picketing of the homes of employees, as such conduct is not subject to the federal board, either by prohibition or protection. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

Therefore, state courts do have jurisdiction to enjoin threats of personal injury and property damage to employees and management. UMW v. Golden Cycle Corp., 134 Colo. 140, 300 P.2d 799 (1956).

III. PUBLICIZING LABOR DISPUTES.

Law reviews. For note, "Colorado's Anti-Picketing Law is Scrapped", see 11 Rocky Mt. L. Rev. 255 (1939).

Courts are free to decide whether to permit or suppress any particular picket line for any reason other than a blanket policy against all picketing. City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

But this section does not provide for issuance of injunctions to restrain peaceful picketing. People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

Freedom of speech in labor disputes is guaranteed by the federal constitution. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic, but not even these essential powers are unfettered by the requirements of the bill of rights; and the scope of the fourteenth amendment is not confined by the notion of the state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the state. Consequently, members of a union might, without special statutory authorization by the state, make known the facts of a labor dispute for freedom of speech is guaranteed by the federal constitution. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

Even though the dispute is not an immediate employer-employee one, peaceful picketing in connection with a labor dispute has its basic roots in the constitutional guaranties of liberty and freedom of speech, and a state may not by its common-law or statutory policy prohibit persuasion, through peaceful picketing, notwithstanding the occasioning labor dispute is not an immediate employer-employee one; inasmuch as a state cannot exclude working men from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him, the interdependence of economic interest of all engaged in the same industry has become a commonplace. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

However, "nonpeaceful" picketing may constitutionally be enjoined. When picketing is not peaceful or where, while peaceful in itself, it is set against a background of acts of violence, injunctive relief may be granted constitutionally. Local 13, Teamsters v. Buckingham Transp. Co., 108 Colo. 419, 118 P.2d 1088 (1941); CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

As such does not infringe the fourteenth amendment. Where a controversy is attended by peaceful picketing and by acts of violence, and the violence is such that continuation of the picketing will operate coercively by exciting fear that violence will be resumed, an injunction by a state court forbidding the picketing as well as the violence does not infringe the fourteenth amendment. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

This section must be considered with § 8-3-109 (2). Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1948).

When so considered and taken together, these sections mean that courts are divested of all jurisdiction to grant restraining orders or injunctions which prohibit any person from doing certain specific things therein mentioned, in any case involving or growing out of a labor dispute. Amalgamated Meat Cutters & Butcher Workmen v. Green, 119 Colo. 92, 200 P.2d 924 (1948).

Subsection (1) of this section, when read together with §§ 8-3-108(2)(a) and 8-3-110(1), confers jurisdiction upon the trial court to enjoin the union and its members from engaging in an unfair labor practice. CF&I Steel, L.P. v. United Steel Workers of Am., 990 P.2d 1124 (Colo. App. 1999), aff'd, 23 P.3d 1197 (Colo. 2001).

A labor union cannot legally be enjoined from peaceful picketing or restrained in their conduct. Local 13, Teamsters v. Perry Truck Lines, Inc., 106 Colo. 25, 101 P.2d 436 (1940).

In "any dispute". Subsection (1)(e) of this section provides that no court may issue an injunction in any case involving a labor dispute to restrain giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in "any dispute", whether by advertising, speaking, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof. Pueblo Bldg. & Constr. Trades Council v. Harper Constr. Co., 134 Colo. 469, 307 P.2d 468 (1957).

8-3-119. Relations contrary to public policy.

  1. The following is declared to be contrary to public policy and shall not afford any basis for the granting of legal or equitable relief by any court against a party to such undertaking or promise or against any other persons who may advise, urge, or induce, without fraud, violence, or threat thereof, either party thereto to act in disregard of the undertaking or promise: Every undertaking or promise made on or after April 1, 1943, whether written or oral, express or implied, between any employee or prospective employee and his employer, prospective employer, or any other individual, firm, company, association, or corporation, whereby:
    1. Either party thereto undertakes or promises to join or to remain a member of some specific labor organization or to join or remain a member of some specific employer organization or any employer organization; or
    2. Either party thereto undertakes or promises not to join or not to remain a member of some specific labor organization or of some specific employer organization or any employer organizations; or
    3. Either party thereto undertakes or promises that he will withdraw from an employment relation in the event that he joins or remains a member of some specific labor organization or any labor organization or of some specific employer organization or any employer organization.

Source: L. 43: p. 412, § 17. CSA: C. 97, § 94(17). CRS 53: § 80-5-17. C.R.S. 1963: § 80-4-17.

8-3-120. Conflict of provisions.

Wherever the application of the provisions of other statutes or laws conflict with the application of the provisions of this article, this article shall prevail; except that, in any situation where the provisions of this article cannot be validly enforced, the provisions of such other statutes or laws shall apply.

Source: L. 43: p. 413, § 18. CSA: C. 97, § 94(18). CRS 53: § 80-5-18. C.R.S. 1963: § 80-4-18.

ANNOTATION

Labor Peace Act does not limit or constrain the law on metropolitan sewage disposal districts concerning the determination of prevailing rates of pay. Such a district is not required to negotiate or engage in collective bargaining in fixing employee compensation at prevailing rates for equivalent work. Local 1 v. Metro Wastewater Reclamation, 876 P.2d 82 (Colo. App. 1994).

Applied in People ex rel. Shaffer v. Teamsters Local 961, 175 Colo. 187, 486 P.2d 10 (1971).

8-3-121. Civil liability for damages.

  1. Any person who suffers injury because of an unfair labor practice has a right of action, jointly and severally, against all persons participating in said practice for damages caused to the injured person thereby.
  2. If, in accordance with this article or otherwise, persons otherwise unwilling to do so are induced to violate contracts of employment or for services or materials, any person injured thereby shall be entitled to recover and have judgment therefor at law against the persons, jointly and severally, so inducing the violation of such obligations.

Source: L. 43: p. 416, § 22. CSA: C. 97, § 94(22). CRS 53: § 80-5-19. C.R.S. 1963: § 80-4-19.

ANNOTATION

Analysis

I. GENERAL CONSIDERATION.

Liability for damages existed prior to legislation. Prior to the enactment of legislation, state and national, designed for the peaceful settlement of labor disputes and controversy, one interfering with a work project of another would be held liable to the extent of all damages caused by such intrusion, and unless by the enactment of legislation the right to be so protected has been eliminated, modified, or otherwise circumscribed, it still exists. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

But there is nothing under the labor peace act which allows either interest or attorney fees. Denver Bldg. & Constr., Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

Applied in Bennett v. Furr's Cafeterias, Inc., 549 F. Supp. 887 (D. Colo. 1982).

II. UNFAIR LABOR PRACTICES.

Damages for tortious labor conduct are recoverable in any court of competent jurisdiction, whether state or federal. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

Even where the national labor relations board establishes a violation, recovery of damages for the resulting injury is left to any court of competent jurisdiction. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

Violation of § 8-2-116 is an unfair labor practice and thus damages are recoverable under this section. Rawson v. Sears, Roebuck & Co., 530 F. Supp. 776 (D. Colo. 1982).

III. VIOLATION OF CONTRACT.

There is nothing inherently illegal in requiring a labor organization to live up to its written contracts. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

And so where the members of a union violate their contract and walk off a job, individually refuse to cross a picket line, and, supported by the union, refuse to furnish union members to operate machines, completely immobilize and render entirely useless all of the machinery to the same extent as though it had been retained in their possession and actually impounded, it is simply a method of depriving the employer of the use of his property and is ineffective to relieve them of liability for their breach of contract. Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

IV. DAMAGES.

Damages, as used in this section, includes those damages recoverable in a common law tort action. Rawson v. Sears, Roebuck & Co., 585 F. Supp. 1393 (D. Colo. 1984).

Damages where heavy equipment is kept idle is its fair rental value. It is impossible to allocate to each of several heavy machines on a job the proportion of the overall profit attributable to the agency of each thereof, and so where, through unlawful or wrongful acts, heavy equipment is kept idle and the work expected to be accomplished thereby delayed, the fair rental value of such equipment during the period of prevention of its use is generally adopted as a proper measure for determination of the extent of damage. This loss of use rule is in keeping with the general rule that damages should be calculated in such manner as is most favorable to the party liable, and it is logical that the rental cost or value of a machine would be less than the amount expected to be derived from its use - if it can be rented for a sum equal to the amount it will return in use, why use it; if one should rent a machine to do a specific job, would he not expect to make a profit for himself over and above the rental he would have to pay? Denver Bldg. & Constr. Trades Council v. Shore, 132 Colo. 187, 287 P.2d 267 (1955).

8-3-122. Penalty for violation.

Any person, firm, or corporation who violates any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined for the first offense not less than fifty dollars nor more than one hundred dollars and for the second and subsequent offenses not less than one hundred dollars nor more than five hundred dollars, together with costs.

Source: L. 43: p. 417, § 23. CSA: C. 97, § 94(23). CRS 53: § 80-5-20. C.R.S. 1963: § 80-4-20. L. 64: p. 389, § 25.

ANNOTATION

Law reviews. For article, "Labor Injunctions Under the Colorado Labor Peace Act", see 26 Dicta 63 (1949).

8-3-123. Nonapplicability of other statutes.

The provisions of sections 8-1-108, 8-1-120, and 8-1-123 shall not apply to this article, but this article and the administration thereof are governed and controlled as to all matters contained in sections 8-1-108, 8-1-120, and 8-1-123 by the special provisions of this article.

Source: L. 43: p. 417, § 25. CSA: C. 97, § 94(25). CRS 53: § 80-5-22. C.R.S. 1963: § 80-4-22. L. 76: Entire section amended, p. 297, § 12, effective May 20.

ARTICLE 3.3 COLLECTIVE BARGAINING BY COUNTY EMPLOYEES

Cross references: For the legislative declaration in SB 22-230, see section 1 of chapter 260, Session Laws of Colorado 2022.

Section

8-3.3-101. Short title.

[ Editor's note: This section is effective July 1, 2023. ] The short title of this article 3.3 is the "Collective Bargaining by County Employees Act".

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1900, § 2, effective July 1, 2023.

8-3.3-102. Definitions.

[ Editor's note: This section is effective July 1, 2023. ] As used in this article 3.3, unless the context otherwise requires:

  1. "Bargaining unit" means a group of county employees in a unit deemed appropriate for the purpose of collective bargaining in accordance with section 8-3.3-110; except that a bargaining unit does not include:
    1. A confidential employee;
    2. A managerial employee;
    3. An executive employee; or
    4. Temporary, intermittent, or seasonal employees who work less than ninety days in a three-hundred-sixty-five-day period.
  2. "Collective bargaining" or "collectively bargain" means the performance of the mutual obligation of a county and an exclusive representative to:
    1. Meet at reasonable times and places and negotiate in good faith with respect to wages, hours, and other terms and conditions of employment;
    2. Resolve questions arising under a collective bargaining agreement through a negotiated grievance procedure culminating in final and binding arbitration; and
    3. Execute a written contract incorporating any agreements reached.
  3. "Collective bargaining agreement" means an agreement negotiated between an exclusive representative and a county, including an agreement reached through an impasse resolution process pursuant to section 8-3.3-114.
  4. "Compensation" means:
    1. Base wage or salary;
    2. Any form of direct monetary payments;
    3. Health, accident, life, and disability insurance;
    4. Pension programs;
    5. Paid time off;
    6. Uniform and equipment allowances; and
    7. Expense reimbursement.
  5. "Confidential employee" means a person who is:
    1. Required to develop or present management positions with respect to employer-employee relations or whose duties normally require access to confidential information that is used to contribute significantly to the development of the management positions; or
    2. Employed as an attorney by the county and whose duties are to provide direct legal counsel regarding the application, interpretation, or enforcement of this article 3.3.
    1. "County" means a county in this state.
    2. "County" does not include:
      1. A city and county;
      2. A county with a population of less than seven thousand five hundred people pursuant to the official figures of the most recent United States decennial census;
      3. The state or any political subdivision of the state where the state or political subdivision of the state acquires or operates a mass transportation system, or any carrier by railroad, express company, or sleeping car company subject to the federal "Railway Labor Act", 45 U.S.C. sec. 151 et seq., as amended;
      4. A municipality;
      5. A school district, a district charter school authorized pursuant to part 1 of article 30.5 of title 22, or an institute charter school authorized pursuant to part 5 of article 30.5 of title 22;
      6. Any district, business improvement district, special district created pursuant to title 32, authority, or other political subdivision of the state; or
      7. A public hospital established by a county pursuant to part 3 of article 3 of title 25.
  7. "County employee" means a person employed by a county, including a person whose employment with the county has ceased due to an unfair labor practice or a discharge, if such discharge is subject to appeal under an applicable appeals process.
  8. "Deadly physical force" means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death.
  9. "Department" means the department of labor and employment.
  10. "Director" means the director of the division.
  11. "Division" means the division of labor standards and statistics in the department.
  12. "Employee organization" means a nonprofit organization that engages with a county concerning wages, hours, and other terms and conditions of employment and that represents or seeks to represent county employees in a bargaining unit.
  13. "Exclusive representative" means the employee organization certified or recognized as the representative of employees in a bargaining unit pursuant to the terms of this article 3.3.
  14. "Executive employee" means an employee:
    1. Whose primary duty is management of the entity in which the employee is employed or of a customarily recognized department or subdivision of the entity;
    2. Who customarily and regularly directs the work of two or more other employees; and
    3. Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight.
  15. "Fact finding" means the process whereby the issues not resolved in collective bargaining negotiations between the county and the exclusive representative are presented to a fact finder for resolution pursuant to section 8-3.3-114.
  16. "Final offer" means the written offer made:
    1. Latest in time by an exclusive representative to a county or by a county to an exclusive representative; and
    2. At least seven calendar days before the beginning of an impasse resolution hearing as described in section 8-3.3-114.
  17. "Interest-based bargaining" means a method of collective bargaining that involves mutual collaboration.
  18. "Managerial employee" means any county employee who has significant responsibilities for formulating county policies and programs or administering an agency or department of an agency.
  19. "New employee orientation" means the onboarding process of a newly hired county employee, whether in person, online, or through other means or mediums, in which county employees are advised of their employment status, rights, benefits, duties, and responsibilities or any other employment-related matters.
  20. "Physical force" means the application of physical techniques or tactics, chemical agents, or weapons to another person.
  21. "Serious bodily injury" means bodily injury that, either at the time of the actual injury or at a later time, involves:
    1. A substantial risk of:
      1. Death;
      2. Serious permanent disfigurement; or
      3. Protracted loss or impairment of the function of any part or organ of the body; or
    2. A break, fracture, or burn of the second or third degree.
  22. "Showing of interest" means written or electronic documentation that provides evidence of county employee membership or support for an employee organization for purposes of exclusive representation. "Showing of interest" includes any electronic signature acceptable under the "Uniform Electronic Transactions Act", article 71.3 of title 24.
  23. "Terms and conditions of employment" means matters affecting the employment and working conditions of county employees, including hours and place of work.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1901, § 2, effective July 1, 2023.

8-3.3-103. County employees - rights - obligations.

[Editor's note: This section is effective July 1, 2023.]

  1. County employees have the right to:
    1. Self-organize;
    2. Form, join, or assist an employee organization;
    3. Engage in the collective bargaining process and the formation of a collective bargaining agreement through representatives of their own choosing;
    4. Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and
    5. Refrain from any or all concerted activities without interference, constraint, or coercion by a county or an employee organization.
  2. County employees have the right to communicate with one another and with employee organization representatives concerning organization, representation, workplace issues, collective bargaining, and the business and programs of an employee organization at county employee work sites and by means of e-mail systems, text messages, or other electronic communications; telephone; paper documents; and other means of communication subject to reasonable restrictions. Upon certification of an exclusive representative, the restrictions must be determined through collective bargaining.
  3. County employees have the right to have their exclusive representative be present at:
    1. Any formal discussion between one or more representatives of the county and one or more county employees in the bargaining unit or their representatives concerning a grievance, a personnel policy or practice, or any other general condition of employment; or
    2. Any examination of a county employee in the bargaining unit by a representative of the county in connection with an investigation if:
      1. The county employee reasonably believes that the examination may result in disciplinary action against the county employee; and
      2. The county employee requests representation.
  4. The discussions described in subsection (3)(a) of this section do not include informal discussions or ordinary coaching conversations between county employees and their managers or supervisors.
  5. A county shall annually inform its county employees in a bargaining unit who are represented by an exclusive representative of their rights under subsection (3)(b) of this section.
  6. County employees have the right to fully participate in the political process. County employees, during nonworking hours, may speak with members of the public and the county on any matter of public concern, including the terms and conditions of their employment, and may engage in other political activities in the same manner as other residents of Colorado, without discrimination, intimidation, or retaliation.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1904, § 2, effective July 1, 2023.

8-3.3-104. Exclusive representatives - rights.

[Editor's note: This section is effective July 1, 2023.]

  1. A county shall give the exclusive representative reasonable access to county employees at work, through electronic communication and other means. Reasonable access must be determined through collective bargaining.
  2. At the end of each calendar quarter, a county shall provide to the exclusive representative the following information for each county employee in the bargaining unit:
    1. The name, employee identification number, department, job classification, job title, work telephone number, work e-mail address, work address, work location, salary, and date of hire of each county employee as contained in the county's records; and
    2. The home address, home and personal cellular telephone numbers, and personal e-mail address of each county employee, unless directed by the county employee not to provide some or all of the information.
      1. Within thirty days after a county employee is hired, the county shall provide the exclusive representative with an opportunity to meet with that county employee during work time as determined pursuant to subsection (3)(a)(III) of this section. (3) (a) (I) Within thirty days after a county employee is hired, the county shall provide the exclusive representative with an opportunity to meet with that county employee during work time as determined pursuant to subsection (3)(a)(III) of this section.
      2. The county shall provide the exclusive representative notice at least ten days in advance of a new employee orientation; except that a shorter notice may be provided when there is an urgent need, critical to the county's operations, that was not reasonably foreseeable.
      3. The county and the exclusive representative shall determine the structure, time, and manner of the employee organization's access to county employees through collective bargaining. The collective bargaining agreement must provide the exclusive representative access to the county's employee orientation and orientation materials and information.
    2. The county shall pay its county employees for the time employees meet with the exclusive representative pursuant to this subsection (3). The county shall pay each county employee the same rate of pay that the employee is paid during normal work hours.
  4. The county shall make payroll deductions for membership dues and other payments that county employees voluntarily authorize to be made to the exclusive representative and related entities. The exclusive representative and related entities shall be the only organizations for which the county shall make payroll deductions from county employees who are in a bargaining unit represented by the exclusive representative.
    1. The county shall honor the terms of county employees' authorizations for payroll deductions made in any form that satisfies the requirements of the "Uniform Electronic Transactions Act", article 71.3 of title 24, including without limitation electronic authorizations, including voice authorizations, that meet the requirements of an electronic signature as defined in section 24-71.3-102 (8).
    2. At the election of the exclusive representative, a county employee's request to cancel or change authorizations for payroll deductions must be directed to the exclusive representative rather than to the county. In such case, the exclusive representative is responsible for processing the request in accordance with the terms of the authorization. An authorization for a payroll deduction may not be irrevocable for a period of more than one year.
    3. An exclusive representative that certifies that it has and will maintain individual county employee authorizations is not required to provide a copy of an individual authorization to the county unless a dispute arises about the existence or terms of that authorization. The exclusive representative shall indemnify the county for any claims made by the county employee for deductions made in reliance on information maintained by the exclusive representative.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1905, § 2, effective July 1, 2023.

8-3.3-105. Counties - rights.

[Editor's note: This section is effective July 1, 2023.]

  1. Unless otherwise agreed to by a county in a collective bargaining agreement, this article 3.3 does not impair the right and responsibility of each county to:
    1. Determine and carry out any mission, initiative, task force, agenda, policy, or program of any department, division, office, or other subdivision of the county;
    2. Establish and oversee a budget, finances, and accounting;
    3. Determine the utilization of technology;
    4. Negotiate, procure, and administer contracts that the county has lawful authority to enter;
    5. Make, amend, enforce, or revoke reasonable personal conduct rules subject to its obligation to collectively bargain with an exclusive representative; or
    6. Take actions as may be necessary to carry out any government function during an emergency declared by a competent authority.
  2. Nothing in this article 3.3 or in a collective bargaining agreement may restrict, duplicate, or usurp any responsibility or authority granted to the county commissioners of any county by the state constitution, a home rule county charter, or any other state law.
  3. Nothing in this article 3.3 prevents a county from convening or engaging in discussions with any county employee or group of county employees to accomplish the rights and responsibilities described in subsection (1) of this section.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1907, § 2, effective July 1, 2023.

8-3.3-106. Director powers and duties - administration - rules - enforcement - hearing officers.

  1. The director shall enforce, interpret, apply, and administer the provisions of this article 3.3 through rule-making, hearings, and appeals, including the establishment of procedures for:
    1. Designating appropriate bargaining units under section 8-3.3-110;
    2. Selecting, certifying, and decertifying exclusive representatives as provided in this article 3.3; and
    3. Filing, hearing, and determining complaints of unfair labor practices pursuant to section 8-3.3-115.
  2. For the purposes of adjudicating disputes and enforcing the provisions of this article 3.3 and rules adopted pursuant to this article 3.3, the director may conduct hearings and administer oaths, examine witnesses and documents, take testimony and receive evidence, and issue subpoenas to compel the attendance of witnesses and the production of records.
    1. The director may delegate the powers specified in subsection (2) of this section to hearing officers. A hearing officer shall make a decision on each relevant issue raised, including findings of fact, conclusions of law, and an order.
    2. The decision and order of a hearing officer constitutes a final agency action pursuant to section 24-4-106. The director shall promptly provide all parties with a copy of the hearing officer's decision by United States mail or by electronic mail. A party may seek judicial review of the decision pursuant to section 24-4-106.
  4. The director and a hearing officer have the power to enforce provisions of this article 3.3 through the imposition of:
    1. Appropriate administrative remedies;
    2. Actual damages related to employee organization dues;
    3. Back pay, including benefits;
    4. Reinstatement of the county employee with the same seniority status that the employee would have had but for the violation;
    5. Other remedies to address any loss suffered by a county employee or group of county employees from unlawful conduct by a county; and
    6. Declaratory or injunctive relief or provisional remedies, including temporary restraining orders or preliminary injunctions.
  5. The director shall maintain on the division's website:
    1. Current versions of this article 3.3 and the rules adopted pursuant to this article 3.3;
    2. All hearing officer decisions and orders;
    3. All final judgments and written decisions of fact finders pursuant to section 8-3.3-114; and
    4. All administrative determinations of certification and decertification of exclusive representatives.
  6. The director may adopt rules as necessary to implement and administer this article 3.3, including rules:
    1. To establish procedures as specified in subsection (1) of this section;
    2. Governing hearings conducted pursuant to this article 3.3;
    3. Regarding objections to the conduct of an election pursuant to section 8-3.3-109; and
    4. Regarding fact finding pursuant to section 8-3.3-114.
  7. The division shall partner with the federal mediation and conciliation service to offer training in interest-based bargaining upon the mutual request of an employee organization and a county.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1907, § 2, effective July 1.

8-3.3-107. Judicial enforcement.

[ Editor's note: This section is effective July 1, 2023. ] The director or any party of interest may request the appropriate district court to enforce orders issued pursuant to this article 3.3, including those for appropriate temporary relief and restraining orders. The court shall consider the request for enforcement based on the record made before the director or hearing officer. The court shall uphold the action of the director or hearing officer and take appropriate action to enforce the action, unless the court concludes that the order is unlawful pursuant to section 24-4-106 (7)(b).

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1909, § 2, effective July 1, 2023.

8-3.3-108. Certification of the employee organization as the exclusive representative - rules.

[Editor's note: This section is effective July 1, 2023.]

    1. On and after July 1, 2023, the director shall certify and a county shall recognize an employee organization as the exclusive representative of a bargaining unit upon a secret ballot election in which the employee organization receives more than fifty percent of the valid ballots cast. An election shall take place when, in accordance with rules promulgated by the director, a petition is filed by an employee organization containing a showing of interest of at least thirty percent of the county employees in a bargaining unit.
    2. The sufficiency of the showing of interest in a representation election for exclusive representation is an administrative determination made by the director or the director's designee and is not subject to challenge by any person. The director shall not disclose the identity of any county employee who has participated in the showing of interest to any person.
    1. The director shall deem an employee organization certified as the exclusive representative if, on or before January 1, 2022, a county recognized the employee organization as the exclusive representative of a bargaining unit. The employee organization must be certified as the exclusive representative for the bargaining unit until or unless the employee organization is decertified as the exclusive representative in accordance with this article 3.3.
    2. The director shall deem an employee organization certified as the exclusive representative if a county, after January 1, 2022, and before July 1, 2023, recognized the employee organization as the exclusive representative and the recognition was based on a demonstration of majority support by the employee organization or the employee organization was selected in a secret ballot election by a majority of bargaining unit county employees voting in the election. The employee organization must be certified as the exclusive representative of the bargaining unit until or unless the employee organization is decertified as the exclusive representative in accordance with this article 3.3.
    3. No county employee positions in a deemed certified bargaining unit may be excluded from the bargaining unit, except by agreement of the exclusive representative and the county.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1909, § 2, effective July 1, 2023.

8-3.3-109. Process for employee organization certification - intervening employee organizations - secret ballot elections - rules.

[Editor's note: This section is effective July 1, 2023.]

  1. Upon the filing of a petition by an employee organization seeking exclusive recognition, the director shall require the county to distribute notice to all county employees in the applicable bargaining unit that must identify the petitioner, the bargaining unit sought by the petitioner, the election process, and an advisement of county employee rights under section 8-3.3-103 (1), (2), and (3).
  2. Within ten days after the date the notice required in subsection (1) of this section is first distributed, other employee organizations may seek to intervene in the certification process. An intervener organization shall file a petition with the director containing the signatures of not less than thirty percent of the county employees in the bargaining unit claimed to be appropriate by the intervener.
  3. If there is a dispute regarding the positions to be included in the appropriate bargaining unit, the director shall promptly order a hearing conducted in accordance with the rules adopted pursuant to this article 3.3. Upon determination of the composition of the appropriate bargaining unit, whether by consent of the parties or upon a decision by the director or the director's designee, the director shall determine the sufficiency of the showing of interest of each petitioner. If a petitioner lacks a sufficient showing of interest, the director shall provide that petitioner with a ten-day opportunity to demonstrate a sufficient showing of interest in the bargaining unit that was deemed appropriate.
  4. Within ten days after the director's determination that a sufficient showing of interest has been provided pursuant to subsection (3) of this section, the director shall:
    1. Order the county to provide to the petitioning employee organization or organizations the names, job titles, work locations, home addresses, personal e-mail addresses, and home or cellular telephone numbers of any county employee in the appropriate bargaining unit unless directed by the county employee not to provide some or all of the information;
    2. Establish by consent or order the procedures for a secret ballot election; and
    3. Order the county to distribute a notice prepared by the director that describes the procedures of the secret ballot election to all county employees in the appropriate bargaining unit.
  5. The ballot for the secret ballot election must contain:
    1. The name of any employee organization submitting a petition containing a showing of interest of at least thirty percent of the county employees in the appropriate bargaining unit; and
    2. A choice of "no representation" for county employees to indicate they do not desire to be represented by an employee organization.
    1. If an employee organization receives a majority of ballots cast in a secret ballot election, the director shall certify the employee organization as the exclusive representative of all county employees in the appropriate bargaining unit subject to any valid objections to the conduct of the election filed in accordance with this article 3.3 and the rules of the director.
    2. Within twenty-eight days after a secret ballot election in which no employee organization receives a majority of the ballots cast, the director shall conduct a runoff election between the two employee organizations receiving the largest number of ballots cast. The director shall certify the results of the election, and, if an employee organization receives a majority of the ballots cast, the director shall certify the employee organization as the exclusive representative of all county employees in the appropriate bargaining unit, subject to any valid objections to the conduct of the election filed in accordance with this article 3.3 and the rules of the director.
  7. Within seven days after certification of the results of a secret ballot election, any party may file objections to the conduct of the election or to conduct affecting the results of the election in accordance with rules promulgated by the director. The objections must contain a short statement of the reasons for the objections and be accompanied by a written offer of proof identifying each witness the party would call to testify concerning the issue and a summary of the witness's testimony. Upon a showing of good cause, the director may extend the time for filing the offer of proof. The party filing the objections shall serve a copy of the objections, but not the written offer of proof, on each of the other parties to the case. If the director or a designated hearing officer finds that misconduct affected the outcome of the election, the director shall invalidate the election and order a subsequent election for the county employees in the appropriate bargaining unit within twenty-eight days after the finding.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1910, § 2, effective July 1, 2023.

8-3.3-110. Determination of appropriate bargaining unit.

[Editor's note: This section is effective July 1, 2023.]

  1. The director shall, upon receipt of a petition for a representation election, designate the appropriate bargaining unit for collective bargaining in accordance with this section. The designation must be determined by:
    1. Consent of the parties; or
    2. If there is not agreement between the parties, an administrative determination of the director.
  2. In determining the appropriateness of a bargaining unit, the director shall consider:
    1. The desires of the public employees;
    2. The similarity of duties, skills, and working conditions of the public employees involved;
    3. The wages, hours, and other working conditions of the public employees;
    4. The administrative structure and size of the public employer;
    5. The history of collective bargaining with that public employer, if any, and with similar public employers; and
    6. Other factors that are normally or traditionally taken into consideration in determining the appropriateness of bargaining units in the public sector.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1912, § 2, effective July 1, 2023.

8-3.3-111. Decertification of exclusive representative - rules.

[Editor's note: This section is effective July 1, 2023.]

  1. A county employee in a bargaining unit or an employee organization may initiate decertification of the employee organization as the exclusive representative upon submission to the director of a showing of interest demonstrating that thirty percent of the county employees in the appropriate bargaining unit request decertification of the existing exclusive representative or a showing of interest demonstrating that thirty percent of the county employees in the bargaining unit authorize an employee organization other than the exclusive representative to represent them for purposes of collective bargaining. Decertification elections must be held in a manner similar to certification elections, as specified in rules promulgated by the director, so long as an incumbent exclusive representative employee organization is not required to file a showing of interest to be placed on the ballot.
  2. If there is a collective bargaining agreement in effect, a petition for a decertification election may be made to the director no earlier than ninety days and no later than sixty days prior to the expiration of the collective bargaining agreement; except that a request for an election may be filed at any time after the expiration of the third year of a collective bargaining agreement that has a term of more than three years.
  3. If an exclusive representative has been certified but no collective bargaining agreement is in effect, the director shall not act on a request for a decertification election earlier than twelve months after the certification of an employee organization as the exclusive representative.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1912, § 2, effective July 1, 2023.

8-3.3-112. Obligation to negotiate in good faith.

[Editor's note: This section is effective July 1, 2023.]

  1. The county and the exclusive representative or its representative have the authority and the obligation to collectively bargain in good faith. The obligation to collectively bargain in good faith does not compel either party to agree to a proposal or make a concession.
  2. The obligation to collectively bargain in good faith:
    1. Requires a county, upon request of the exclusive representative, to provide information that may be relevant to the terms and conditions of employment or the interpretation of the collective bargaining agreement;
    2. Includes a county's duty to furnish data to the exclusive representative that:
      1. Is normally maintained by the county in the regular course of business; and
      2. Is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining or subject to a grievance under a collective bargaining agreement; and
    3. Does not include an obligation to furnish information that constitutes guidance, advice, counsel, or training provided for managerial employees or executive employees relating to collective bargaining.
  3. Collective bargaining between a single county and an employee organization serving as the exclusive representative of more than one bargaining unit of county employees must be consolidated upon the request of the county.
  4. An exclusive representative and a county shall make a good faith effort to complete negotiations so that the terms of a collective bargaining agreement may be effectively considered by the board of county commissioners during the adoption of the county budget. The board of county commissioners is not obligated to make an appropriation of funds necessary to fund the terms of a collective bargaining agreement reached after October 15 of the year prior to the budget year if the exclusive representative has not been certified prior to June 1 of the current year unless otherwise agreed upon by both parties.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1913, § 2, effective July 1, 2023.

8-3.3-113. Collective bargaining agreement - arbitration.

[Editor's note: This section is effective July 1, 2023.]

  1. An agreement negotiated between an exclusive representative and a county, with the approval of the board of county commissioners of the county, constitutes the collective bargaining agreement between the parties.
  2. A collective bargaining agreement entered into under this article 3.3 must be for a term of at least twelve months and not more than sixty months. A collective bargaining agreement remains in effect until replaced by a subsequent collective bargaining agreement.
  3. If there is an existing law, policy, ordinance, or charter provision that applies to a county that provides procedures for the appeal of county employee discipline, including terminations, a county employee may elect to appeal a disciplinary action either under the applicable appeals procedure established by that law, policy, ordinance, or charter provision or under a grievance procedure established in a collective bargaining agreement applicable to the county, but not both. A county employee's election of a remedy is irrevocable and is made at the time the county employee timely files a written disciplinary appeal under the negotiated grievance procedure or the procedure established by law, policy, ordinance, or charter provision, whichever occurs first.
    1. A collective bargaining agreement shall provide for a grievance procedure culminating in final and binding arbitration, subject to judicial review in accordance with this article 3.3, to resolve disputes over the interpretation, application, and enforcement of any provision of the collective bargaining agreement.
    2. An exclusive representative or the county may seek judicial review or confirmation of an arbitrator's decision as the final step in a collective bargaining agreement grievance procedure in a court of competent jurisdiction. The decision of an arbitrator must be enforced, and the parties shall comply with the decision and award, unless a court concludes that:
      1. The decision and award was procured by corruption, fraud, or other undue means;
      2. The arbitrator exceeded the arbitrator's authority;
      3. The arbitrator's decision and award violated public policy;
      4. The arbitrator engaged in manifest disregard of the law; or
      5. The arbitrator denied the parties a fundamentally fair hearing.
  5. A collective bargaining agreement shall not:
    1. Delay the prompt interviewing of county employees under investigation; except that a county employee must be given sufficient time to have the county employee's exclusive representative present at any examination in connection with an investigation in accordance with section 8-3.3-103 (3);
    2. Permit a county employee to use paid time for any or all of a suspension when the suspension was properly imposed, in accordance with applicable standards or procedures, or where a supervisor, employer, administrative law judge, hearing officer, or a court has found a deprivation of rights under the state or federal constitution;
    3. Permit the expungement of disciplinary records from a county employee's personnel file for substantiated infractions of a county's policies regarding:
      1. Physical use of force;
      2. Deadly physical force;
      3. Actions resulting in death or serious bodily injury; and
      4. Actions resulting in a deprivation of rights under the state or federal constitution;
    4. Impose limits on the period of time during which a county employee may be disciplined or an investigation may occur for incidents involving physical force, incidents of deadly physical force, incidents that resulted in death or serious bodily injury, or incidents alleging a deprivation of an individual's rights under the state or federal constitution;
    5. Place limitations on the substance, method for filing, or source of complaints that may prompt an investigation into employee misconduct.
  6. A collective bargaining agreement must be consistent with applicable state and federal laws, including state and federal laws governing the county officials' and county employees' retirement plan or the Colorado employee retirement system described in article 51 of title 24, whichever is applicable. If any clause in a collective bargaining agreement is determined to be invalid or unenforceable, the unenforceability or invalidity of such clause does not affect the enforceability or validity of any other clause of the collective bargaining agreement.
  7. Any term of a collective bargaining agreement requiring the appropriation of funds must be submitted to the board of county commissioners of the county at the meeting following notification by the exclusive representative to the county that the bargaining unit has approved the agreement in accordance with the internal procedures of the exclusive representative.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1914, § 2, effective July 1, 2023.

8-3.3-114. Impasse resolution - fact finding - rules.

[Editor's note: This section is effective July 1, 2023.]

  1. If an impasse arises on one or more issues during the negotiation of a collective bargaining agreement, the exclusive representative and the county shall engage in the dispute resolution process established in this section or an alternative procedure established by mutual agreement. The deadlines in this section may be extended by mutual agreement of the parties.
    1. If the exclusive representative and the county cannot reach an agreement on one or more issues subject to collective bargaining within ninety calendar days after commencing meetings to negotiate, or by the one hundred twentieth day prior to the expiration of an existing collective bargaining agreement, whichever is earlier, either party may request the assistance of a mediator. If mediation is requested by either party, bargaining must continue with the aid of a mediator.
    2. If the parties cannot agree on a mediator within seven calendar days after the request for mediation, the parties must request mediation assistance from the federal mediation and conciliation service. The parties shall share equally the cost of mediation services, if any.
  3. Mediation must continue for sixty days, until sixty days prior to the expiration of the existing collective bargaining agreement, or until the mediator determines that mediation services are no longer necessary or effective, whichever occurs first. Mediation may continue thereafter upon mutual agreement of the parties.
    1. If the parties remain at an impasse following mediation, either party may request fact finding in accordance with rules promulgated by the director.
    2. The director shall maintain a roster of qualified fact finders, each of whom must be registered with the federal mediation and conciliation service or the American Arbitration Association, and shall require the parties to select a fact finder from the director's roster or from a roster of labor arbitrators obtained directly from the federal mediation and conciliation service or the American Arbitration Association, or its successor organization. The parties shall select a fact finder from a list of seven names from the roster, as designated by the director and the American Arbitration Association, or its successor organization, or the federal mediation and conciliation service, whichever is applicable.
    3. Unless the parties otherwise agree, the fact finder will make a recommendation to accept the final offer of the exclusive representative or the final offer of the county on each issue in dispute.
    4. In arriving at a recommendation, the fact finder shall consider:
      1. The financial ability of the county to meet the costs of any proposed settlement;
      2. The interests and welfare of the public;
      3. The compensation, hours, and terms and conditions of employment of the county employees involved in the collective bargaining in comparison with the compensation, hours, and terms and conditions of employment of other employees in the public and private sectors in comparable communities;
      4. The stipulations of the parties;
      5. The lawful authority of the county;
      6. Changes in the cost of living; and
      7. Other factors that are normally or traditionally taken into consideration in the determination of compensation, hours, and terms and conditions of employment through voluntary collective bargaining, interest arbitration, or otherwise between parties in public and private employment.
    5. The parties shall share the cost of the fact finder equally.
  5. The exclusive representative shall approve or reject the recommendation of the fact finder in accordance with its internal procedures. If the exclusive representative approves of the recommendation, the board of county commissioners of the county shall vote to accept or reject the recommendation at a regular or special meeting open to the public immediately following notification by the exclusive representative that the bargaining unit has accepted the recommendation.
    1. Except for the parties identified in subsection (6)(b) of this section, if the parties are at an impasse following consideration of the recommendations of the fact finder, each party remains obligated to collectively bargain in good faith to resolve the impasse.
    2. Bargaining units of a local government employer that include firefighters, as defined in section 29-5-301 (2), must comply with post-fact-finding procedures in section 29-5-210 (9), (10), and (13).
  7. Except for the recommendation of a fact finder, all documents, proposals, and draft and tentative agreements drafted or exchanged pursuant to the process established in this section are privileged, are not public records, and are not subject to inspection pursuant to the "Colorado Open Records Act", part 2 of article 72 of title 24.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1915, § 2, effective July 1, 2023.

8-3.3-115. Unfair labor practices.

[Editor's note: This section is effective July 1, 2023.]

  1. A county or exclusive representative shall not refuse to negotiate in good faith with respect to wages, hours, and other terms and conditions of employment, including refusing to cooperate in any impasse resolution procedure.
  2. A county, its representatives, its agents, or anyone acting on behalf of the county shall not:
    1. Discriminate against, coerce, intimidate, interfere with, or impose reprisals against, or threaten to discriminate against, coerce, intimidate, interfere with, or impose reprisals against, any county employee for forming or assisting an employee organization or expressing the county employee's views regarding county employee representation or workplace issues or the rights granted to the county employee in this article 3.3;
    2. Deter or discourage county employees or county employee applicants from becoming or remaining members of an employee organization or from authorizing payroll deductions for dues or fees to an employee organization; except that the county may respond to questions from a county employee pertaining to the county employee's employment or any matter described in this article 3.3, as long as the response is neutral toward participation in, selection of, and membership in an employee organization;
    3. Use any public funds or official position to support or oppose an employee organization; except that the provision of routine services and facilities and paid time for exclusive representatives may be provided by a county pursuant to a collective bargaining agreement between the county and an exclusive representative;
    4. Dominate or interfere in the administration of an employee organization;
    5. Discharge or discriminate against a county employee because the county employee has filed an affidavit, petition, or complaint or given any information or testimony pursuant to this article 3.3 or a collective bargaining agreement or chosen to be represented by an exclusive representative;
    6. Deny the rights accompanying certification as the exclusive representative pursuant to this article 3.3;
    7. Collectively bargain in regard to matters covered by this article 3.3 with a county employee or group of county employees in the bargaining unit or an employee organization purportedly representing the county employees in a bargaining unit other than the exclusive representative;
    8. Disclose to a private entity, other than the exclusive representative, personally identifiable information about county employees within the bargaining unit that is exempt from disclosure pursuant to law; or
    9. Otherwise fail to comply with the requirements of this article 3.3.
    1. An employee organization or exclusive representative shall not:
      1. Interfere with, restrain, or coerce a county employee with respect to the rights granted in this article 3.3 or with respect to selecting an exclusive representative;
      2. Willfully or deliberately fail to fairly represent a county employee who is in a bargaining unit exclusively represented by the employee organization in the negotiation or enforcement of the terms of a collective bargaining agreement; or
      3. Otherwise fail to comply with the requirements of this article 3.3.
    2. This subsection (3) does not prohibit an exclusive representative from providing legal, economic, or job-related services or benefits beyond those established in any applicable collective bargaining agreement exclusively to its members.
  4. An aggrieved party is barred from filing a claim that alleges that either the county or employee organization has violated this section unless the claim is filed within six months after the date on which the aggrieved party knew or reasonably should have known of the alleged violation.
  5. The expression of any personal view, argument, or opinion by an elected official must not be considered a violation of this section unless the expression contains a threat of reprisal or promise of a benefit or is made under coercive conditions. Representatives of counties may correct the record with respect to any false or misleading statement made by any person, publicize the fact of a representation election, and encourage county employees to exercise their right to vote in the election.
    1. An exclusive representative certified or deemed certified in accordance with this article 3.3 shall not threaten, facilitate, support, or cause a county employee to participate in the following:
      1. A strike;
      2. A work stoppage;
      3. A work slowdown;
      4. A group sick out; or
      5. An action that disrupts, on a widespread basis, the day-to-day functioning of a county.
    2. A controversy concerning an activity prohibited by subsection (6)(a) of this section may be submitted to the division pursuant to section 8-3.3-106. Upon a finding that the exclusive representative has violated subsection (6)(a) of this section, the director shall award any appropriate relief, including sanctions, fines, or decertification. If an exclusive representative is decertified by the director, the employee organization may begin the certification process in section 8-3.3-108 after one year from the date of decertification.
    3. Nothing in this subsection (6) prohibits the exclusive representative from engaging in other concerted activities for the purpose of the collective bargaining process or other mutual aid or protection, without interference, restraint, or coercion by the county.
    4. Nothing in this section affects the rights of any county employee or employee organization not covered by the express terms of this article 3.3.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1917, § 2, effective July 1, 2023.

8-3.3-116. Existing bargaining relationships.

[ Editor's note: This section is effective July 1, 2023. ] An exclusive representative deemed certified pursuant to this article 3.3 has the right to collectively bargain matters not covered by an existing collective bargaining agreement negotiated prior to July 1, 2023, if the subjects proposed for bargaining were outside of the lawful scope of bargaining prior to July 1, 2023.

Source: L. 2022: Entire article added, (SB 22-230), ch. 260, p. 1920, § 2, effective July 1, 2023.

ARTICLE 3.5 NONIMMIGRANT AGRICULTURAL SEASONAL WORKER PILOT PROGRAM

8-3.5-101 to 8-3.5-114. (Repealed)

Editor's note:

  1. This article was added in 2008 and was not amended prior to its repeal in 2014. For the text of this article prior to 2014, consult the 2013 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
  2. Section 8-3.5-114 provided for the repeal of this article, effective January 1, 2014. (See L. 2008, p. 2304.)

ARTICLE 3.7 COLORADO OFFICE OF NEW AMERICANS

Section

8-3.7-101. Legislative declaration - intent.

  1. The general assembly hereby finds and declares that:
    1. Colorado is home to more than half a million immigrants, including refugees, who make up ten percent of the state's population and play a vital role in our state's cultural fabric and shared prosperity;
    2. Over six hundred thousand individuals, who make up eleven percent of Colorado's population, are native-born Americans with at least one immigrant parent;
    3. Immigrants and refugees are an integral part of Colorado's diverse economy and are a vital part of the state's tax base;
    4. Immigrant-led households in the state paid one and one-half billion dollars in state and local taxes and had a combined spending power, after-tax income, of just over fourteen billion dollars in 2018;
    5. More than thirty-five thousand immigrant and refugee entrepreneurs employ over one hundred thousand individuals;
    6. Immigrants and refugees make up a little over thirteen percent of Colorado's science, technology, engineering, and math (STEM) workforce, twenty-one percent of the construction workforce, seventeen percent of the manufacturing workforce, and nineteen percent of the administrative and support, waste management, and remediation services workforces; and
    7. Between 2017 and 2019, naturalization rates increased by seventy-seven percent in Colorado and an additional one hundred thirteen thousand eight hundred seventy-three Coloradans are eligible to naturalize.
  2. The general assembly further finds and declares that:
    1. Supporting the integration and inclusion of immigrants and refugees in our communities helps the whole state thrive;
    2. Creating and establishing an office of new Americans will help to organize a structure for state agencies and immigrant communities to partner in order to enhance integration across the state and will provide immigrant communities the means to address any concerns and obstacles they encounter when accessing services; and
    3. The office of new Americans is intended to serve as a centralized location where state programs, initiatives, and policies focused on facilitating economic stability and promoting successful integration for immigrants are housed.
  3. It is the general assembly's intent that the office of new Americans:
    1. Will grow over time so that in the future it could provide grants to local immigrant-focused, community-based organizations, depending on available funds; and
    2. Be funded through gifts, grants, and donations through the 2022-23 state fiscal year and that in the second regular session of the seventy-fourth general assembly an appropriation be included in the annual general appropriation act for the office's state funding and associated FTE, subject to available appropriations; but nothing precludes the general assembly from making an appropriation to the office of new Americans prior to the second regular session of the seventy-fourth general assembly.

Source: L. 2021: Entire article added, (HB 21-1150), ch. 350, p. 2272, § 1, effective September 7.

8-3.7-102. Definitions.

As used in this article 3.7, unless the context otherwise requires:

  1. "Career-aligned ESL classes" or "career-aligned English as a second language program" means a curriculum or classes that support specific careers or occupations through the alignment of education, employment, and skills programs that accelerate an individual's ability to communicate on the job or in the pursuit of a job.
  2. "Classes" includes virtual classes with a live teacher, recorded classes, and additional curriculum and other supports associated with learning.
  3. "Department" means the department of labor and employment created in section 24-1-121.
  4. "English language learner" or "ELL" means an individual who is linguistically diverse and who has a level of English language proficiency that requires language support.
  5. "Immigrant" or "new American" means a Coloradan who has arrived, or an individual who will arrive, to Colorado as an immigrant or refugee and includes the individual's children. "Immigrant" or "new American" includes: Refugees, asylees, special immigrant visa holders, victims of trafficking, recipients of the federal deferred action for childhood arrivals program, and all other immigrants and aspiring citizens seeking opportunity, safety, or reunification of family.
  6. "Integration" means a dynamic, two-way process in which immigrants and new Americans and the receiving community work together to build secure, vibrant, and cohesive communities without having to forego their own cultural identity.
  7. "ONA" means the Colorado office of new Americans created in section 8-3.7-103.
  8. "Task force" means the global talent task force created by ONA in section 8-3.7-107.
  9. "Work-based learning" has the same meaning as set forth in section 8-83-601 (15).
  10. "Workforce partners" includes entities that provide work-based learning opportunities, job training, and other supports that enable individuals to connect with in-demand jobs, industries, and occupations.

Source: L. 2021: Entire article added, (HB 21-1150), ch. 350, p. 2273, § 1, effective September 7. L. 2022: Entire section R&RE, (SB 22-140), ch. 357, p. 2557, § 3, effective July 1.

Cross references: For the legislative declaration in SB 22-140, see section 1 of chapter 357, Session Laws of Colorado 2022.

8-3.7-103. Colorado office of new Americans - creation - duties - report.

    1. There is hereby created, initially in the department of labor and employment, the Colorado office of new Americans, the head of which shall be the director of the Colorado office of new Americans, who shall be appointed by the executive director of the department. The Colorado office of new Americans and the director of the office are type 1 entities, as defined in section 24-1-105, and exercise their powers and perform their duties and functions under the department of labor and employment. The director of the ONA has regular access to the office of the governor and has the power to convene other state agencies.
    2. The director shall staff the ONA in order to effectively meet the goals and intentions set forth in this article 3.7 and to meet future needs of Colorado's new American community. In order to successfully carry out the ONA's purpose, it is the general assembly's intent that an individual's lived experience or work within the immigrant community be considered when hiring decisions are made for ONA staff. The ONA serves as the point of contact for immigrant-serving state agencies, private sector organizations, and the public about immigrant issues in Colorado.
      1. The ONA shall convene stakeholders and state agencies, including the department, the governor's office, the department of human services, the department of regulatory agencies, and the department of public health and environment, to develop a recommendation to the governor's office on what state agencies or offices are best suited to administer the Colorado refugee services program created in section 26-2-138, and any related programs, so that the ONA's refugee integration goals are met or exceeded.
      2. The ONA shall complete a draft recommendation before January 1, 2022, and shall complete a final recommendation, which the ONA shall provide to the governor's office, no later than one year after September 7, 2021.
      3. The department shall report on the efficacy of the ONA and the ONA's progress toward meeting the goals set forth in this article 3.7, including the draft and final recommendations described in subsection (1)(c)(II) of this section, as part of the department's annual presentation to its legislative committee of reference pursuant to section 2-7-203. If necessary, the committee may make a recommendation that a member of the general assembly sponsor appropriate legislation regarding the Colorado refugee services program created in section 26-2-138.
  2. The Colorado office of new Americans shall:
    1. Implement a statewide strategy to facilitate economic stability and promote successful economic, social, linguistic, and cultural integration by investing in the success of immigrants in Colorado;
    2. Identify and address issues related to integration;
    3. Foster enhanced inclusion for immigrants;
    4. Ensure equitable opportunities and access to services for immigrants;
    5. Establish and work with a community advisory committee that can provide input to the state from Colorado's immigrant communities;
    6. Work directly with immigrant populations to hear and address their concerns and obstacles in accessing services;
    7. Coordinate with the Colorado refugee services program created in section 26-2-138 to align it with the goals of the ONA, and manage or direct any other relevant programs that might exist or be created on or after September 7, 2021, including immigrant-focused state programs, initiatives, and policies, that might exist or be created in the future, so that the state's services for immigrants and the state's approach to immigrant integration are cohesive, integrated, and elegant;
    8. Coordinate with and make recommendations to the governor, the general assembly, and state agencies on ways to improve policies and programs to support immigrant integration across the state, such as:
      1. Recommending changes in the organization, management, programs, and budget of state agencies in order to promote the integration of immigrants;
      2. Coordinating with state agencies and public-private partnerships;
      3. Serving as a resource for community-based organizations serving immigrants in Colorado;
      4. Creating a public-private program to build up immigrant-serving nonprofits statewide;
      5. Responding to inquiries and serving as the point of contact for immigrant-serving agencies, state agencies, and the public about immigrant issues in Colorado; and
      6. Recommending and participating in cultural competency and diversity, equity, and inclusion training for state departments;
    9. Ensure the ONA is utilizing data only as authorized under state and federal law to inform the state's efforts to advance economic stability and integration for immigrants. The ONA shall never use or share data solely for the use of civil immigration enforcement.
    10. As funding allows, undertake studies, symposia, research, and factual reports to gather insight and to formulate and present recommendations to the governor, state agencies, and the general assembly related to issues of concern and importance to immigrants in Colorado. The ONA shall also analyze economic and demographic trends in order to make policy and programmatic recommendations to the governor, state agencies, and the general assembly.
    11. To the extent possible, ensure that all ONA services, systems, vital documents, and other communications and resources, including websites, are accessible to all Coloradans, regardless of English proficiency and disabilities. Where applicable and possible, the ONA shall ensure compliance exceeds the compliance requirements of the federal "Americans with Disabilities Act of 1990", 42 U.S.C. sec. 12101 et seq., as amended, any available English proficiency plans, and the Colorado anti-discrimination act in part 6 of article 34 of title 24.
  3. As funding allows, the ONA shall promote integration activities among immigrants by using a model similar to the family resource center program set forth in part 1 of article 3 of title 26.5 with the goal of implementing immigrant support through community-based initiatives and nonprofit organizations where immigrants and immigrant families can access formal and informal support to promote their health, economic well-being, and integration. The activities must include, but need not be limited to:
    1. Economic opportunities such as:
      1. Workforce development, skills recognition, and barrier reduction;
      2. Initiatives that increase economic stability;
      3. Entrepreneurship and higher education attainment; and
      4. Naturalization among eligible individuals;
    2. Increased access, such as:
      1. Connecting immigrants to local, state, and federal resources, and to other resources as they are available or relevant to meet the immigrants' needs;
      2. Connecting immigrants and immigrant families with English language learning programs; and
      3. Providing immigrants and immigrant families with referrals to community-based organizations; and
    3. State education and outreach by:
      1. Promoting and celebrating the success and contributions of Colorado's immigrant community; and
      2. Engaging with the receiving community in order to foster inclusivity and integration by building awareness, promoting mutual understanding, and increasing social bridging opportunities.
  4. The ONA shall advise and provide guidance to the governor, state agencies, and the general assembly on any immigrant issue.
    1. On or before November 1, 2022, and, notwithstanding section 24-1-136 (11), on or before November 1 each year thereafter, the director of the office of new Americans, or the director's designee, shall submit a report to the general assembly. The report shall include a review and summary of the activity, information, and data on all the programs that the office administered during the prior fiscal year.
    2. In order to minimize the costs associated with preparing the report required by subsection (5)(a) of this section, the ONA is authorized to incorporate or append to such report any other reports it is required by law to develop.

Source: L. 2021: Entire article added, (HB 21-1150), ch. 350, p. 2274, § 1, effective September 7. L. 2022: IP(3) amended, (HB 22-1295), ch. 123, p. 825, § 20, effective July 1; (1)(a) amended, (SB 22-162), ch. 469, p. 3383, § 85, effective August 10.

Cross references: For the short title (the "Debbie Haskins 'Administrative Organization Act of 1968' Modernization Act") in SB 22-162, see section 1 of chapter 469, Session Laws of Colorado 2022.

8-3.7-104. Colorado office of new Americans - funding.

The general assembly may appropriate money from the general fund or from any other available source for the purposes of the ONA specified in this article 3.7. The ONA may seek, accept, and expend gifts, grants, or donations from private or public sources for the purposes of this article 3.7.

Source: L. 2021: Entire article added, (HB 21-1150), ch. 350, p. 2277, § 1, effective September 7.

8-3.7-105. Wage replacement program - executive director - director of the ONA - feasibility study - recommendations.

  1. The executive director of the department, in partnership with the director of the division of unemployment insurance, the director of the ONA, and the office of the governor, shall study the feasibility of establishing a contract with a nonprofit, third-party entity to administer a wage replacement program for individuals who are unemployed through no fault of their own and who are ineligible for regular unemployment benefits due to their immigration status. The feasibility study must include potential sources of money to fund a wage replacement program, legal compliance with the United States department of labor's regular unemployment insurance programs, data sharing and data privacy, and input from relevant stakeholders.
  2. On or before December 1, 2021, the executive director of the department and the director of the ONA shall submit recommendations to the governor and to the senate business, labor, and technology committee and the house of representatives business affairs and labor committee, or their successor committees.

Source: L. 2021: Entire section added, (SB 21-233), ch. 422, p. 2793, § 2, effective September 7.

8-3.7-106. Virtual, career-aligned English as a second language program - created - report - appropriation.

  1. On or before January 1, 2023, the ONA shall establish a virtual, career-aligned English as a second language program to:
    1. Ensure ELLs have access to work-based learning, job-training, and employment opportunities and the supports they need for success in the career-aligned English as a second language program and employment with workforce partners and employers;
    2. Facilitate work-based learning by providing additional support to help employers and other workforce partners recruit, serve, hire, and promote ELLs;
    3. Provide efficient and effective access to established, career-aligned ESL classes for youth and adults, work-based learning participants, and other job training participants and their employers, program administrators, and teachers;
    4. Streamline access to career-aligned ESL classes through the purchase of licenses to virtual platforms that are then made available to interested workforce partners and employers; and
    5. Accelerate the adoption of career-aligned ESL classes into employer and work-based learning programs and training programs for reskilling, upskilling, and next-skilling, as those terms are defined in section 8-83-601.
  2. The virtual, career-aligned English as a second language program shall address:
    1. The intersection of English language learning with other work-based learning and skill-based hiring efforts;
    2. The challenge of incorporating ELLs into our workforce and workforce programs, including work-based learning opportunities; and
    3. Opportunities for employers to integrate new Americans and ELLs into workforce and talent pipelines, in recognition of the need for equitable opportunities and the importance of harnessing the talents of skilled new Americans and ELLs in this state.
    1. The ONA shall:
      1. Through a process that complies with the "Procurement Code", articles 101 to 112 of title 24, select at least one qualified vendor with an established and existing virtual platform that offers career-aligned ESL classes in in-demand industries and occupations;
      2. Allocate funding to the vendor selected in subsection (3)(a)(I) of this section:
        1. For the purchase of individual licenses that can be distributed to interested and selected employers and work-based learning and workforce partners for individuals to access virtual classes and platforms; and
        2. To create new career-aligned ESL classes, as needed, for Colorado's in-demand occupations;
      3. Determine the most efficient method for distributing licenses for career-aligned ESL classes through a streamlined process to reduce barriers to participation, with a focus on small- to medium-sized employers and work-based learning and workforce partners with existing relationships with the department and on other state agencies and partners, including local workforce centers, schools, institutions of higher education, and nonprofit organizations;
      4. Communicate the opportunities created through this section holistically and statewide, with a focus on areas of the state with higher proportions of ELLs and new Americans and in areas without existing career-aligned ESL classes or with additional barriers, such as transportation barriers, that currently prevent Coloradans from participating in ESL classes, including in rural areas;
      5. Work collaboratively with other offices and divisions in the department, the department of higher education, the department of human services, and the office of economic development to identify diverse partners and employers and additional supports for participants to ensure their success;
      6. Share outcomes of the virtual, career-aligned English as a second language program with the employer community; and
      7. Collect data concerning the program that includes:
        1. The types of entities supported, such as an employer or apprenticeship program, and their location in Colorado;
        2. The number of participating entities;
        3. The number of individuals served at each entity and their demographics;
        4. The careers or occupations supported by the virtual, career-aligned English as a second language program; and
        5. Any outcomes and data to measure the success of the virtual, career-aligned English as a second language program.
    2. In conjunction with the department, the ONA shall include the information in this subsection (3) in the presentations required by section 8-83-602 at the hearings held under the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
  4. For the 2022-23 state fiscal year the general assembly shall appropriate one million one hundred thousand dollars from the general fund to the department, for use by ONA for the purposes of this section. Any unexpended money remaining at the end of the 2022-23 state fiscal year:
    1. Does not revert to the general fund or any other fund;
    2. May be used by the department in the 2023-24 state fiscal year without further appropriation; and
    3. Shall not be used for any purpose other than the purposes set forth in this section.

Source: L. 2022: Entire section added, (SB 22-140), ch. 357, p. 2558, § 4, effective July 1.

Cross references: For the legislative declaration in SB 22-140, see section 1 of chapter 357, Session Laws of Colorado 2022.

8-3.7-107. Global talent task force - created - repeal.

  1. On or before September 1, 2022, the ONA shall establish a global talent task force that includes diverse representation reflective of the state. The task force shall:
    1. Study the pathways for obtaining certain in-demand occupational licenses and international credentials to take advantage of the global pool of skilled workers in Colorado. The task force shall choose at least five occupations that are responsive to workforce needs, as determined by the annual Colorado talent report prepared pursuant to section 24-46.6-103 (3), and that are occupations in which the state has the need for and an ability to provide oversight, including occupations in early childhood education and care, education, and health care, with a priority given to the practice of nursing.
    2. Accelerate and expand work that the department and other state agencies have done to integrate new Americans and internationally trained professionals into the workforce; and
    3. Provide policy and programmatic recommendations to the governor and the general assembly to increase the ability of the state to harness the skills of new Americans, including through work-based learning opportunities.
  2. The ONA shall provide administrative staff to support the task force.
    1. On or before September 1, 2022:
      1. The director of the ONA shall appoint twelve members of the task force as follows:
        1. Three internationally trained professionals;
        2. Three representatives of community-based organizations or coalitions serving new Americans and internationally trained professionals;
        3. One representative of work-based learning programs or providers of experiential learning opportunities;
        4. One representative of employers participating in a work-based learning program;
        5. Two representatives of in-demand industries, such as education or health care;
        6. One representative of local district colleges; and
        7. One representative of the state work force development council created in section 24-46.3-101.
      2. The president of the senate shall appoint two members of the senate to the task force, one of whom represents rural communities;
      3. The speaker of the house of representatives shall appoint two members of the house of representatives to the task force, one of whom represents rural communities;
      4. The minority leader of the senate shall appoint one member of the senate to the task force;
      5. The minority leader of the house of representatives shall appoint one member of the house of representatives to the task force; and
      6. The governor shall appoint one representative of the office of the governor.
    2. The task force also consists of:
      1. The executive director of the department or the executive director's designee;
      2. The executive director of the department of regulatory agencies or the executive director's designee;
      3. The executive director of the department of higher education or the executive director's designee;
      4. The commissioner of education or the commissioner's designee; and
      5. The executive director of the department of early childhood education or the executive director's designee.
    3. The ONA may, as appropriate, provide a fifty-dollar stipend to each task force member per task force meeting that the member attends to recognize the task force members who are not otherwise compensated for the time served on the task force.
  4. On or before December 31, 2023, the task force shall report its findings and recommendations made pursuant to this section to the office of the governor and to the general assembly and shall make the report available to the public.
  5. This section is repealed, effective December 31, 2024.

Source: L. 2022: Entire section added, (SB 22-140), ch. 357, p. 2560, § 4, effective July 1.

Cross references: For the legislative declaration in SB 22-140, see section 1 of chapter 357, Session Laws of Colorado 2022.

ARTICLE 3.8 IMMIGRATION LEGAL ASSISTANCE

Cross references: For the legislative declaration in HB 21-1194, see section 1 of chapter 352, Session Laws of Colorado 2021.

Section

8-3.8-101. Immigration legal assistance - fund - report - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Administrator" means the state department of labor and employment, created in section 24-1-121.
    2. "Fund" means the immigration legal defense fund established in subsection (2) of this section.
    3. "Indigent" means a person whose household income does not exceed two hundred percent of the family federal poverty guidelines, adjusted for family size, determined annually by the United States department of health and human services.
    4. "Qualifying organization" means an organization that:
      1. Is exempt from taxation pursuant to section 501 (c)(3) of the federal "Internal Revenue Code of 1986", as amended;
      2. Has a physical place of business in Colorado;
      3. Obtains more than twenty-five percent of its funding from sources other than grants from the fund;
      4. Can provide services using grant dollars within six months of receiving funding; and
      5. Includes on the staff of the organization an attorney with at least three years' experience and expertise in providing legal representation to indigent clients in civil immigration proceedings before the executive office for immigration review within the United States department of justice; or
        1. Partners with a nonprofit legal service provider that has at least three years' experience and expertise in providing legal representation to indigent clients in civil immigration proceedings before the executive office for immigration review within the United States department of justice; or
        2. Only if there are no nonprofit legal services providers available to provide legal services, partners with a private immigration attorney who has a physical place of business in or near the geographic area that the qualifying organization serves, and the private immigration attorney has at least three years' experience and expertise in providing legal representation to indigent clients in civil immigration proceedings before the executive office for immigration review within the United States department of justice.
        3. Withdrawal is required by the rules of professional conduct.
  2. There is established in the state treasury the immigration legal defense fund. The money in the fund is continuously appropriated to the administrator. Pursuant to subsection (5)(b) of this section, the administrator is authorized to make grants from the fund to qualifying organizations to represent indigent individuals appearing before an immigration court in Colorado who lack private counsel.
  3. A qualifying organization that receives a grant from the fund shall only use the grant for services that include providing indigent clients with:
    1. Legal representation before an immigration court in Colorado;
    2. Representation before the board of immigration appeals within the United States department of justice, but does not include providing indigent clients with representation before a United States district court, a United States circuit court of appeals, or the United States supreme court on appeal from an immigration order or on any other related matters;
    3. Any other representation before an immigration agency necessary to protect the interests of the indigent client from removal or civil immigration detention, including custody redetermination proceedings, reinstatement of removal proceedings, withholding-only proceedings, request for release from civil immigration detention, or application for ancillary relief from removal;
    4. Any other continued representation after the issuance of a final order by the executive office for immigration review that is necessary to conclude the indigent client's representation, secure the indigent client's immigration benefits, or obtain the indigent client's release from immigration detention; and
    5. Litigation expenses, such as application fees, interpretation and translation costs, medical or psychological evaluations, and expert fees, as well as associated overhead expenses.
    1. A qualifying organization shall provide representation on all legal matters necessary for protection from removal and detention, through appeals to the board of immigration appeals, and shall accept cases without regard to the indigent client's likelihood of success or eligibility for immigration relief.
      1. A qualifying organization shall move to withdraw from representation if:
      2. If the qualifying organization's withdrawal motion is denied, the organization shall provide legal services as required by the executive office for immigration review.

      (A) The venue in the case is transferred to an immigration court outside of Colorado;

      (B) The indigent client no longer resides in Colorado; or

    1. A qualifying organization seeking to receive a grant from the fund shall submit an application each year to the administrator on a form provided by the administrator. The application form must request any information that the administrator needs to determine whether the applying organization meets the qualifications for receipt of a grant, the dollar amount requested, and the intended use of any funding.
      1. The administrator shall evaluate applications of qualifying organizations to determine if the applications satisfy the criteria defined in subsection (1)(d) of this section and shall select grant recipients based on their expertise and qualifications to provide qualified services through a grant from the fund.
      2. On or before January 31, 2022, and on January 2 each year thereafter, the administrator shall award grants from the fund, subject to available appropriations, to qualifying organizations.
      3. The administrator shall award larger grants to fewer qualifying organizations to achieve a greater, measurable impact. The administrator may determine the amount of each grant award, which may differ from the qualifying organization's requested dollar amount.
  6. The administrator shall award grants so that seventy percent of the money is allocated to qualifying organizations serving indigent clients who are detained in the custody of the United States department of homeland security for deportation proceedings and thirty percent of the money is allocated to qualifying organizations serving indigent clients who are not detained for deportation proceedings; except that this split does not apply if the need for detained indigent client representation can be met with less than seventy percent of the money. Two-thirds of the money for those qualifying organizations serving indigent clients who are not detained must be used for in-person legal services serving indigent clients outside of the Denver metro area, unless there are no qualifying applicants serving nondetained indigent clients outside the Denver metro area.
  7. Each qualifying organization that receives a grant pursuant to this section shall submit an annual report to the administrator that includes the following information, to the extent possible and to the extent that it does not violate the privilege and confidentiality of an attorney-client relationship:
    1. Number of clients served;
    2. Case outcomes;
    3. Type of defense, including detained and nondetained;
    4. Type of case, including removal, asylum, adjustment of status, and work authorization;
    5. Location of court and judge for each case;
    6. Client family data, including number of children and whether the household has mixed immigration status;
    7. Client country of origin;
    8. Client ethnicity;
    9. Client zip code;
    10. Client's duration in Colorado and the United States;
    11. Whether bond or release was granted to the client;
    12. Cost of bond for the client;
    13. Income range of the client;
    14. Whether or not the client had previous immigration status in the United States; and
    15. Number of days the client spent in detention.
    1. In addition to any appropriation from the general fund, the administrator may seek, accept, and expend gifts, grants, or donations from private or public sources for the purposes of this section. The administrator may receive and expend the money received through gifts, grants, and donations.
    2. The administrator may expend no more than the lesser of fifteen thousand dollars or up to five percent per year from the fund for the direct and indirect costs associated with the administration of this section. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund.
  9. Notwithstanding section 24-1-136 (11)(a)(I), the administrator shall submit a consolidated report of the reported information described in subsection (7) of this section to the joint budget committee on July 1, 2022, and each July 1 thereafter.
  10. A county may appropriate local or state funds to implement its own immigration legal defense fund, partner with a local immigration legal defense fund, or partner with the administrator to enhance the effectiveness of the immigration legal defense fund.

Source: L. 2021: Entire article added, (HB 21-1194), ch. 352, p. 2288, § 2, effective September 7.

Wages

ARTICLE 4 WAGES

Editor's note: This article was numbered as article 8 of chapter 80, C.R.S. 1963. The substantive provisions of this article were amended with relocations in 2003, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2003, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editors' notes following those sections that were relocated.

Law reviews: For article, "An Overview of Federal and State Wage-Hour Laws -- Part II", see 14 C olo. Law. 781 (1985); for article, "State Laws: A Growing Minefield for Employers", see 23 C olo. Law. 1089 (1994); for article, "Civil Actions Under the Colorado Wage Claim Act", see 28 Colo. Law. 65 (Feb. 1999); for article, "New Age Employee Compensation Issues: Or, It Used To Be So Simple . . .", see 29 Colo. Law. 5 (June 2000); for article, "New Developments in Colorado Wage Law", see 33 Colo. Law. 67 (Jan. 2004); for article, "The Colorado Wage Act, Employee Status, and Terms of Compensation", see 36 Colo. Law. 63 (May 2007); for article, "2007 Amendments to the Colorado Wage Claim Act", see 36 Colo. Law. 47 (Dec. 2007); for article, "'Use-It-or-Lose-It' Benefit Policies and the Colorado Wage Claim Act", see 41 Colo. Law. 39 (June 2012).

Section

8-4-101. Definitions.

As used in this article 4, unless the context otherwise requires:

  1. "Citation" means a written determination by the division that a wage payment requirement has been violated.
  2. "Credit" means an arrangement or understanding with the bank or other drawee for the payment of an order, check, draft, note, memorandum, or other acknowledgment of indebtedness.
  3. "Director" means the director of the division of labor standards and statistics or his or her designee.
  4. "Division" means the division of labor standards and statistics in the department of labor and employment.
  5. "Employee" means any person, including a migratory laborer, performing labor or services for the benefit of an employer. For the purpose of this article 4, relevant factors in determining whether a person is an employee include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; except that an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an "employee".
  6. "Employer" has the same meaning as set forth in the federal "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 203 (d), and includes a foreign labor contractor and a migratory field labor contractor or crew leader; except that the provisions of this article 4 do not apply to the state or its agencies or entities, counties, cities and counties, municipal corporations, quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage conservation companies or districts organized and existing under the laws of Colorado.
  7. "Field labor contractor" means anyone who contracts with an employer to recruit, solicit, hire, or furnish migratory labor for agricultural purposes to do any one or more of the following activities in this state: Hoeing, thinning, topping, sacking, hauling, harvesting, cleaning, cutting, sorting, and other direct manual labor affecting beets, onions, lettuce, potatoes, tomatoes, and other products, fruits, or crops in which labor is seasonal in this state. Such term shall not include a farmer or grower, packinghouse operator, ginner, or warehouseman or any full-time regular and year-round employee of the farmer or grower, packinghouse operator, ginner, or warehouseman who engages in such activities, nor shall it include any migratory laborer who engages in such activities with regard to such migratory laborer's own children, spouse, parents, siblings, or grandparents.
  8. "Fine" means any monetary amount assessed against an employer and payable to the division.

    (8.5) "Foreign labor contractor" means any person who recruits or solicits for compensation a foreign worker who resides outside of the United States in furtherance of that worker's employment in Colorado; except that "foreign labor contractor" does not include any entity of the federal, state, or local government.

  9. "Migratory laborer" means any person from within or without the limits of the state of Colorado who offers his or her services to a field labor contractor, whether from within or from without the limits of the state of Colorado, so that said field labor contractor may enter into a contract with any employer to furnish the services of said migratory laborers in seasonal employment.
  10. "Notice of assessment" means a written notice by the division, based on a citation, that the employer must pay the amount of wages, penalties, or fines assessed.
  11. "Notice of complaint" means the letter sent by the division as described in section 8-4-111 (2)(a).
  12. "Penalty" means any monetary amount assessed against an employer and payable to an employee.
  13. "Wage complaint" means a complaint filed with the division from an employee for unpaid wages alleging that an employer has violated section 15 of article XVIII of the Colorado constitution, this article, article 6 of this title, or any rule adopted by the director pursuant to this article or article 6 of this title.
    1. "Wages" or "compensation" means:
      1. All amounts for labor or service performed by employees, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculating the same or whether the labor or service is performed under contract, subcontract, partnership, subpartnership, station plan, or other agreement for the performance of labor or service if the labor or service to be paid for is performed personally by the person demanding payment. No amount is considered to be wages or compensation until such amount is earned, vested, and determinable, at which time such amount shall be payable to the employee pursuant to this article.
      2. Bonuses or commissions earned for labor or services performed in accordance with the terms of any agreement between an employer and employee;
      3. Vacation pay earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.
      4. "Paid sick leave" as provided in part 4 of article 13.3 of this title 8.
    2. "Wages" or "compensation" does not include severance pay.
  15. "Written demand" means any written demand for wages or compensation from or on behalf of an employee, including a notice of complaint, mailed or delivered to the employer's correct address.

Source: L. 2003: Entire article amended with relocations, p. 1850, § 1, effective August 6. L. 2014: Entire section amended, (SB 14-005), ch. 276, p. 1110, § 2, effective January 1, 2015. L. 2016: (3) and (4) amended, (HB 16-1323), ch. 131, p. 378, § 10, effective August 10. L. 2019: IP, (5), and (6) amended and (8.5) added, (HB 19-1267), ch. 182, p. 2058, § 2, effective January 1, 2020. L. 2020: (14)(a)(IV) added, (SB 20-205), ch. 294, p. 1457, § 2, effective July 14.

Cross references: (1) For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

(2) For the legislative declaration in HB 19-1267, see section 1 of chapter 182, Session Laws of Colorado 2019.

ANNOTATION

Annotator's note. The following annotations include cases decided under this section as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions.

The provisions of the wage claim act should be liberally construed to carry out its purpose of assuring timely payment of wages and providing adequate judicial relief when wages are not paid. Hofer v. Polly Little Realtors, Inc., 543 P.2d 114 (1975); Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo. App. 1992).

Therefore, construing the Act to impose personal liability for wages on high ranking corporate officers furthers that legislative purpose. Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo. App. 1992).

Wage claim act provides a clear, comprehensive statutory scheme designed to require an employer to pay wages earned by their employees in a timely manner. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).

Timely compensation or judicial relief intended. The beneficent purpose of the general assembly in drafting this section was to assure that employees would be timely compensated for labor or services and that when not so compensated they would be entitled to adequate judicial relief. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

A plaintiff may bring claims under both the federal Fair Labor Standards Act and the state wage claim act. Redmond v. Chains, Inc., 996 P.2d 759 (Colo. App. 2000).

Real estate salesman not "employee" within definition of subsection (5). Hyland v. Pikes Peak Capital Corp. 714 P.2d 914 (Colo. App. 1985).

The term "interstate drivers" in Colorado Minimum Wage Order No. 31, 7 Code Colo. Regs. 1103-1, applies only to drivers whose work takes them across state lines. The minimum wage order exempts only interstate drivers from receiving overtime pay. Brunson v. Colo. Cab Co., 2018 COA 17, 433 P.3d 93.

Association of counties and municipal corporations excepted from "employer". Since counties and municipal corporations are excepted from the definition of "employer", an association which consists of counties and municipal corporations is also excepted. Paulu v. Lower Ark. Valley Council of Gov'ts, 655 P.2d 1391 (Colo. App. 1982).

Definition of "employer" in subsection (6) does not include individual officers and agents of a corporation. Leonard v. McMorris, 63 P.3d 323 (Colo. 2003) (disagreeing with Cusimano v. Metro Auto., Inc., cited below).

Corporate officers not individually liable for wages. The officers and agents of a corporation are not jointly and severally liable for payment of employee wages and other compensation the corporation owes its employees under the employment contract and the wage claim act. Leonard v. McMorris, 63 P.3d 323 (Colo.) (disagreeing with Cusimano v. Metro Auto., Inc., cited below), 320 F.3d 1116 (10th Cir. 2003).

Definition of "employer" in subsection (6) clearly discloses an intent to impose personal liability for wages on at least high ranking corporate officers based solely on their status as officers, and the definition is not expressly limited to corporate officers with duties in relation to the unpaid employee. Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo. App. 1992); Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002).

A general manager whose duties included scheduling of overtime work but who had been given no authority or responsibility over wage payment policies was not subject to personal liability under the wage claim act. Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002).

Federal Bankruptcy Code does not preempt claims against corporate officers under the state wage claim act. Claims under the wage claim act would be preempted if brought against the corporation because the corporation filed a bankruptcy petition. The Bankruptcy Code does not, however, extend its protections to individuals or entities that have not filed a bankruptcy petition. In the absence of such a statutory provision, no direct conflict exists between the Bankruptcy Code and the wage claim act. Leonard v. McMorris, 106 F. Supp. 2d 1098 (D. Colo. 2000), rev'd on other grounds, 320 F.3d 1116 (10th Cir. 2003).

The term "corporation" in subsection (6) refers to private corporations, since municipal and quasi-municipal corporations are mentioned separately as exceptions. Paulu v. Lower Ark. Valley Council of Gov'ts, 655 P.2d 1391 (Colo. App. 1982).

The term "employer" in subsection (6) does not include the state of Colorado. The wage claim act does not apply to the state or state agencies. Lang v. Colo. Mental Health Inst. in Pueblo, 44 P.3d 262 (Colo. App. 2001).

To find that short-term disability policy benefits are "wages or compensation", under a plain reading of this section, an employee must show that the benefit amounts must be (1) for labor or service, (2) earned, (3) vested, and (4) determinable. Kouzmanoff v. Unum Life Ins. Co. of Am., 374 F. Supp. 3d 1076 (D. Colo. 2019).

Vacation pay is within the definition of "wages or compensation". Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979); Thompson v. Cheyenne Mtn. Sch. Dist., 844 P.2d 1235 (Colo. App. 1992).

Payments under employer's growth bonus program were "wages" where plan replaced existing commission programs, provided for cash payments to supplement employees' regular earnings based on their efforts in areas of sales and company growth, no components of the fund were based on net profit, and only one component was based on "gross profit". Gray v. Empire Gas, Inc., 679 P.2d 610 (Colo. App. 1984).

Bonus is "wages or compensation" where it is both vested and determinable as of the date of termination, where the bonus is disproportionately large in relation to the base salary, and where bonus was owed as compensation for services performed by individual employee rather than pursuant to profit-sharing plan. Rohr v. Ted Neiters Motor Co., 758 P.2d 186 (Colo. 1988).

There is an implied right to compensation for unused vacation time upon termination of contract with school district absent an express agreement to the contrary. Thompson v. Cheyenne Mtn. Sch. Dist., 844 P.2d 1235 (Colo. App. 1992).

Although an employee is not entitled to vacation pay, if an employer chooses to provide vacation pay, it cannot be forfeited once it is earned regardless of an employment agreement to the contrary that states that accrued but unused vacation time is not payable if the employee is fired or fails to give two weeks notice. Nieto v. Clark's Market, Inc., 2021 CO 48, 488 P.3d 1140.

This section was amended to specifically exclude severance pay as wages or compensation, effective August 6, 2003, however the general assembly appears to acknowledge that a severance payment could constitute wages or compensation under the previous version of the statute. Fang v. Showa Entetsu Co., 91 P.3d 419 (Colo. App. 2003).

Employee failed to show that short-term disability policy benefits were "wages or compensation". The benefits were not amounts for labor or services performed. Employer only pays monies pursuant to this policy to the extent that an eligible employee is unable to work. The benefits replace a portion of an employee's income in the event of sickness or injury. Employee's claim fails because the disability benefits flow from his declared inability to work, rather than from labor or service pursuant to the employment contract. Kouzmanoff v. Unum Life Ins. Co. of Am., 374 F. Supp. 3d 1076 (D. Colo. 2019).

And even if the short-term disability benefits were for labor or services, under the policy, the employer retained the power to cease the short-term benefits altogether for any reason or no reason at all. The benefits are better viewed as status perks to which employees have no vested wage claim should an employer discontinue them. Kouzmanoff v. Unum Life Ins. Co. of Am., 374 F. Supp. 3d 1076 (D. Colo. 2019).

Liability of corporate officers for wages. Subsection (6) is at least susceptible to the interpretation that corporate officers are personally liable for wages due employees. Fischer v. District Court, 561 P.2d 1266 (1977); Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo. App. 1992); Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002).

Labor Peace Act does not limit or constrain the law on metropolitan sewage disposal districts concerning the determination of prevailing rates of pay. Such a district is not required to negotiate or engage in collective bargaining in fixing employee compensation at prevailing rates for equivalent work. Local 1 v. Metro Wastewater Reclamation, 876 P.2d 82 (Colo. App. 1994).

Applied in Cavic v. Pioneer Astro Indus., Inc., 825 F.2d 1421 (10th Cir. 1987); Olsen v. Bondurant and Co., 759 P.2d 861 (Colo. App. 1988).

8-4-102. Proper payment - record of wages.

  1. Negotiable instrument required. No employer or agent or officer thereof shall issue, in payment of or as an evidence of indebtedness for wages due an employee, any order, check, draft, note, memorandum, or other acknowledgment of indebtedness unless the same is negotiable and payable upon demand without discount in cash at a bank organized and existing under the general banking laws of the state of Colorado or the United States or at some established place of business in the state. The name and address of the drawee shall appear upon the face of the order, check, draft, note, memorandum, or other acknowledgment of indebtedness; except that such provisions shall not apply to a public utility engaged in interstate commerce and otherwise subject to the power of the public utilities commission. At the time of the issuance of same, the maker or drawer shall have sufficient funds in or credit with the bank or other drawee for the payment of same. Where such order, check, draft, note, memorandum, or other acknowledgment of indebtedness is protested or dishonored on the ground of insufficiency of funds or credit, the notice of memorandum of protest or dishonor thereof shall be admissible as proof of presentation, nonpayment, and protest.
  2. Direct deposit. Nothing in this article shall prohibit an employer from depositing wages due or to become due or an advance on wages to be earned in an account in any bank, savings and loan association, credit union, or other financial institution authorized by the United States or one of the several states to receive deposits in the United States if the employee has voluntarily authorized such deposit in the financial institution of the employee's choice.

    (2.5) Paycard.

    1. Nothing in this article shall prohibit an employer from depositing an employee's wages on a paycard, so long as the employee:
      1. Is provided free means of access to the entire amount of net pay at least once per pay period; or
      2. May choose to use other means for payment of wages as authorized in subsections (1) and (2) of this section.
    2. As used in this section, "paycard" means an access device that an employee uses to receive his or her payroll funds from his or her employer.
  3. Scrip prohibited. No employer or agent or officer thereof shall issue in payment of wages due, or wages to become due an employee, or as an advance on wages to be earned by an employee any scrip, coupons, cards, or other things redeemable in merchandise unless such scrip, coupons, cards, or other things may be redeemed in cash when due, but nothing contained in this section shall be construed to prohibit an employer from guaranteeing the payment of bills incurred by an employee for the necessities of life or for the tools and implements used by such employee in the performance of his or her duties.

Source: L. 2003: Entire article amended with relocations, p. 1852, § 1, effective August 6. L. 2008: (2.5) added, p. 150, § 1, effective August 5.

Cross references: For wage equality, see article 5 of this title 8; for minimum wages of workers, see article 6 of this title 8.

8-4-103. Payment of wages - insufficient funds - pay statement - record retention - gratuity notification - penalties.

    1. All wages or compensation, other than those mentioned in section 8-4-109, earned by any employee in any employment, other than those specified in subsection (3) of this section, shall be due and payable for regular pay periods of no greater duration than one calendar month or thirty days, whichever is longer, and on regular paydays no later than ten days following the close of each pay period unless the employer and the employee shall mutually agree on any other alternative period of wage or salary payments.
    2. An employer is subject to the penalties specified in section 8-4-113 (1) if, two or more times within any twenty-four-month period, the employer causes an employee's check, draft, or order to not be paid because the employer's bank does not honor an employee's paycheck upon presentment. The director may investigate complaints regarding alleged violations of this paragraph (b).
    1. In agricultural, horticultural, and floricultural pursuits and in stock or poultry raising, when the employee in such employments is boarded and lodged by the employer, all wages or compensation earned by any employee in such employment shall be due and payable for regular periods of no greater duration than one month and on paydays no later than ten days following the close of each pay period.
    2. Nothing in paragraph (a) of this subsection (2), as amended by House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general assembly, shall be construed as changing the property tax classification of property owned by a floricultural operation.
  3. Nothing in this article shall apply to compensation payments due an employee under a profit-sharing plan, a pension plan, or other similar deferred compensation programs.
  4. Every employer shall at least monthly, or at the time of each payment of wages or compensation, furnish to each employee an itemized pay statement in writing showing the following:
    1. Gross wages earned;
    2. All withholdings and deductions;
    3. Net wages earned;
    4. The inclusive dates of the pay period;
    5. The name of the employee or the employee's social security number; and
    6. The name and address of the employer.

    (4.5) An employer shall retain records reflecting the information contained in an employee's itemized pay statement as described in subsection (4) of this section for a period of at least three years after the wages or compensation were due. The records shall be available for inspection by the division, and the employer shall provide copies of the records upon request by the division or the employee. The director may impose a fine of up to two hundred fifty dollars per employee per month on an employer who violates this subsection (4.5) up to a maximum fine of seven thousand five hundred dollars.

  5. Each field labor contractor shall keep, for a period of three years on each migratory laborer, records of wage rates offered, wages earned, number of hours worked, or, in the case of contractual or piecework where a field labor contractor pays the employee, the aggregate amount earned and all withholdings from wages on a form furnished by and in the manner prescribed by the division. In addition, in each pay period, each field labor contractor shall provide to each migratory laborer engaged in agricultural employment a statement of the gross earnings of the laborer for the period and all deductions and withholdings therefrom. The director may prescribe appropriate forms for use pursuant to this subsection (5). All such payroll records shall be filed with the division quarterly or at any time said labor contractor leaves this state or terminates his or her contract. The director is charged with the responsibility of making periodic reports to the governor's committee on migrant labor.
  6. It is unlawful for an employer engaged in a business where the custom prevails of the giving of gratuities by patrons to an employee of the business to assert a claim to, or right of ownership in, or control over gratuities. These gratuities are the sole property of the employee unless the employer notifies each patron in writing, including by a notice on a menu, table tent, or receipt, that gratuities are shared by employees. Nothing in this section prevents an employer from requiring employees to share or allocate gratuities on a preestablished basis among the employees of the business.

Source: L. 2003: Entire article amended with relocations, p. 1853, § 1, effective August 6. L. 2005: (2) amended, p. 347, § 1, effective August 8. L. 2009: (1) amended, (HB 09-1108), ch. 161, p. 696, § 1, effective August 5. L. 2014: (4.5) added, (SB 14-005), ch. 276, p. 1112, § 3, effective January 1, 2015. L. 2019: (6) amended, (HB 19-1254), ch. 168, p. 1969, § 2, effective August 2.

Editor's note: This section is similar to former §§ 8-4-102 (3), 8-4-105, and 8-4-115, as they existed prior to 2003, and the former § 8-4-103 was relocated to § 8-4-104.

Cross references: (1) For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

(2) For the legislative declaration in HB 19-1254, see section 1 of chapter 168, Session Laws of Colorado 2019.

ANNOTATION

Annotator's note. Since § 8-4-103 is similar to § 8-4-105 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.

A contract to pay wages "when convenient to pay" must be construed as imposing an obligation to pay at some time. Royal Tiger Mines Co. v. Ahearn, 97 Colo. 116, 47 P.2d 692 (1935) (decided under repealed CSA, C. 97, § 200).

Section 8-4-104 and this section are mutually exclusive. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

And distinguishable. Section 8-4-104 creates a right in an employee under one set of circumstances together with a cause of action for a penalty, while this section creates a right in an employee under a different set of circumstances, and does not provide for a penalty. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Entitlement to attorney fees. If plaintiff were required to bring a claim for both wages and penalties under § 8-4-104 and this section in order to be entitled to attorney fees, the reference to this section in § 8-4-114 would be meaningless, contrary to the other language of the statute, and inconsistent with the rules of statutory construction which require that the "entire statute is intended to be effective", and that every word must be given effect, if possible. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Section 8-4-114 applies to recovery under either. Even though it is not clear from the judgment, based on the jury verdict, whether the employee's recovery was under § 8-4-104 or this section, § 8-4-114 applies to either. Keeton v. Rike, 38 Colo. App. 505, 559 P.2d 262 (1977).

"Deferred compensation programs" do not encompass vacation pay. Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979).

Applied in Lampley v. Celebrity Homes, Inc., 42 Colo. App. 359, 594 P.2d 605 (1979); Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981).

8-4-104. Funds available to pay wages - mining industry.

Every person, firm, association, corporation, or agent, manager, superintendent, or officer thereof engaged in the business of extracting or of extracting and refining or reducing metals or minerals other than petroleum, or other than parties having a free unencumbered title to the fee simple of the property being worked, and also other than mining partnerships in respect to the members of the partnerships, shall, before commencing work in any period for which a single payment of wages is to be made, have on hand, either physically or by deposit with a bank or trust company in the county where such property is located or, if there is no bank or trust company in the county, in the bank or trust company nearest the property, cash or readily salable securities of a market value equivalent to such cash, or accounts receivable payable in the normal course of business prior to the next payday, in a sufficient amount to make the payment of wages without discount or loss to any person employed on the mining property for such period.

Source: L. 2003: Entire article amended with relocations, p. 1854, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-103 as it existed prior to 2003, and the former § 8-4-104 was relocated to § 8-4-109.

ANNOTATION

Applied in Lampley v. Celebrity Homes, Inc., 42 Colo. App. 359, 594 P.2d 605 (1979) (decided under former law).

8-4-105. Payroll deductions permitted - notice required.

  1. [Editor's note: This version of the introductory portion to subsection (1) is effective until January 1, 2023.] No employer shall make a deduction from the wages or compensation of an employee except as follows:

    (1) [ Editor's note: This version of the introductory portion to subsection (1) is effective January 1, 2023. ] An employer shall not make a deduction from the wages or compensation of an employee except as follows:

    1. Deductions mandated by or in accordance with local, state, or federal law including, but not limited to, deductions for taxes, "Federal Insurance Contributions Act" ("FICA") requirements, garnishments, or any other court-ordered deduction;
    2. Deductions for contributions attributable to automatic enrollment in an employee retirement plan, as defined in section 8-4-105.5, regardless of whether the plan is subject to the federal "Employee Retirement Income Security Act of 1974", as amended;
    3. Deductions for loans, advances, goods or services, and equipment or property provided by an employer to an employee pursuant to a written agreement between such employer and employee, so long as it is enforceable and not in violation of law;
    4. Any deduction necessary to cover the replacement cost of a shortage due to theft by an employee if a report has been filed with the proper law enforcement agency in connection with such theft pending a final adjudication by a court of competent jurisdiction; except that, if the accused employee is found not guilty in a court action or if criminal charges related to such theft are not filed against the accused employee within ninety days after the filing of the report with the proper law enforcement agency, or such charges are dismissed, the accused employee shall be entitled to recover any amount wrongfully withheld plus interest. In the event an employer acts without good faith, in addition to the amount wrongfully withheld and legally proven to be due, the accused employee may be awarded an amount not to exceed treble the amount wrongfully withheld. In any such action the prevailing party shall be entitled to reasonable costs related to the recovery of such amount including attorney fees and court costs.
    5. Any deduction, not listed in paragraph (a), (a.5), (b), or (c) of this subsection (1), that is authorized by an employee if the authorization is revocable, including deductions for hospitalization and medical insurance, other insurance, savings plans, stock purchases, supplemental retirement plans, charities, and deposits to financial institutions;
    6. [Editor's note: This version of subsection (1)(e) is effective until January 1, 2023.] A deduction for the amount of money or the value of property that the employee failed to properly pay or return to the employer in the case where a terminated employee was entrusted during his or her employment with the collection, disbursement, or handling of such money or property. The employer shall have ten calendar days after the termination of employment to audit and adjust the accounts and property value of any items entrusted to the employee before the employee's wages or compensation shall be paid as provided in section 8-4-109. This is an exception to the pay requirements in section 8-4-109. The penalty provided in section 8-4-109 shall apply only from the date of demand made after the expiration of the ten-day period allowed for payment of the employee's wages or compensation. If, upon such audit and adjustment of the accounts and property value of any items entrusted to the employee, it is found that any money or property entrusted to the employee by the employer has not been properly paid or returned the employer as provided by the terms of any agreement between the employer and the employee, the employee shall not be entitled to the benefit of payment pursuant to section 8-4-109, but the claim for unpaid wages or compensation of such employee shall be disposed of as provided for by this article.

      (e) [ Editor's note: This version of subsection (1)(e) is effective January 1, 2023. ] (I) A deduction for the amount of money or the value of property that the employee failed to properly pay or return to the employer in the case where a terminated employee was entrusted during the employee's employment with the collection, disbursement, or handling of such money or property, but only after providing notice of the deduction as specified in subsection (1)(e)(II) of this section.

      (II) The employer has ten calendar days after the termination of employment to:

      1. Audit and adjust the accounts and property value of any items entrusted to the employee before the employee's wages or compensation shall be paid as provided in section 8-4-109. This is an exception to the pay requirements in section 8-4-109. The penalty provided in section 8-4-109 shall apply only from the date of demand made after the expiration of the ten-day period allowed for payment of the employee's wages or compensation.
      2. Provide notice to the employee that the employer is deducting from the employee's wages or compensation the amount of money or the value of property that the employee failed to properly pay or return to the employer, which notice must include a written accounting specifying the amount of money or the specific property that the employee failed to pay or return, the replacement value of the property, and, to the extent known, when the money or property was provided to the employee and when the employer believes the employee should have paid the money or returned the property to the employer.

        (III) After an employer provides the notice required by subsection (1)(e)(II)(B) of this section and makes a deduction from the wages or compensation of an employee, if the employee, within fourteen days after the employer provides the notice, pays the money or returns the property that was the basis for the deduction, the employer shall pay the employee the amount of the deduction within fourteen days after the employee pays the money or returns the property to the employer.

        (IV) If, after auditing and adjusting the accounts and property value of any items entrusted to the employee pursuant to subsection (1)(e)(II)(A) of this section and providing notice pursuant to subsection (1)(e)(II)(B) of this section, it is found that any money or property entrusted to the employee by the employer has not been properly paid or returned to the employer as provided by the terms of any agreement between the employer and the employee, the employee is not entitled to the benefit of payment pursuant to section 8-4-109, but the employee's claim for unpaid wages or compensation shall be disposed of as provided for by this article 4.

  2. Nothing in this section authorizes a deduction below the minimum wage applicable under the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq.

Source: L. 2003: Entire article amended with relocations, p. 1855, § 1, effective August 6. L. 2010: (1)(a.5) added and (1)(d) amended, (SB 10-035), ch. 3, p. 33, § 1, effective January 1, 2011. L. 2022: IP(1) and (1)(e) amended, (SB 22-161), ch. 370, p. 2627, § 6, effective January 1, 2023.

Editor's note: This section is similar to former § 8-4-101 (7.5) as it existed prior to 2003, and the former § 8-4-105 was relocated to § 8-4-103.

8-4-105.5. Automatic enrollment in retirement plans - relief from liability - conditions - definitions.

      1. An employer that provides automatic enrollment in an employee retirement plan is not liable for the investment decisions made by the employer on behalf of any participating employee with respect to the default investment of contributions made for that employee to the plan if: (1) (a) (I) An employer that provides automatic enrollment in an employee retirement plan is not liable for the investment decisions made by the employer on behalf of any participating employee with respect to the default investment of contributions made for that employee to the plan if:
        1. The plan provides the participating employee at least quarterly opportunities to select investments for the employee's contributions among investment alternatives available under the plan;
        2. The participating employee is given notice of the investment decisions that will be made in the absence of direction from the employee, a description of all the investment alternatives available for employee investment direction under the plan, and a brief description of procedures available for the employee to change investments; and
        3. The employee is given at least annual notice of the actual default investments made of contributions attributable to the employee.
      2. The relief from liability of the employer under this subsection (1) extends to any employee retirement plan official who makes the actual default investment decisions on behalf of participating employees.
    2. Nothing in this subsection (1) modifies any existing responsibility of employers or other plan officials for the selection of investment funds for participating employees.
  2. As used in this section:
    1. "Automatic enrollment" means an employee retirement plan provision under which an employee will have a specified contribution made to the plan, equal to a compensation reduction, that will be made for the employee unless the employee affirmatively elects, in accordance with the federal "Pension Protection Act of 2006", Pub.L. 109-280, either not to have any compensation reduction contributions or a compensation reduction contribution in an alternative amount.
    2. "Employee retirement plan" means a plan described in sections 401(k) or 403(b) of the federal "Internal Revenue Code of 1986", as amended; a governmental deferred compensation plan described in section 457 of the federal "Internal Revenue Code of 1986", as amended; or a payroll deduction individual retirement account plan described in sections 408 or 408A of the federal "Internal Revenue Code of 1986", as amended.

Source: L. 2010: Entire section added, (SB 10-035), ch. 3, p. 33, § 2, effective January 1, 2011.

Cross references: For the federal "Internal Revenue Code of 1986" referenced in subsection (2)(b), see title 26 of the United States Code.

8-4-106. Early payment of wages permitted.

Nothing contained in this article shall in any way limit or prohibit the payment of wages or compensation at earlier dates, or at more frequent intervals, or in greater amounts, or in full when or before due.

Source: L. 2003: Entire article amended with relocations, p. 1856, § 1, effective August 6.

8-4-107. Post notice of paydays.

Every employer shall post and keep posted conspicuously at the place of work if practicable, or otherwise where it can be seen as employees come or go to their places of work, or at the office or nearest agency for payment kept by the employer a notice specifying the regular paydays and the time and place of payment, in accordance with the provisions of section 8-4-103, and also any changes concerning them that may occur from time to time.

Source: L. 2003: Entire article amended with relocations, p. 1856, § 1, effective August 6.

8-4-108. Payment in the event of strike.

  1. In the event of a strike, every employee who is discharged shall be paid at the place of discharge, and every employee who quits or resigns shall be paid at the office or agency of the employer in the county or city and county where such employee has been performing the labor or service for the employer. All payments of money or compensation shall be made in the manner provided by law.
  2. In the event of any strike, the unpaid wages or compensation earned by such striking employee shall become due and payable on the employer's next regular payday, and the payment or settlement shall include all amounts due such striking employee without abatement or reduction. The employer shall return to each striking employee, upon request, any deposit or money or other guaranty required by the employer from the employee for the faithful performance of the duties of his or her employment.

Source: L. 2003: Entire article amended with relocations, p. 1856, § 1, effective August 6.

8-4-109. Termination of employment - payments required - civil penalties - payments to surviving spouse or heir.

    1. When an interruption in the employer-employee relationship by volition of the employer occurs, the wages or compensation for labor or service earned, vested, determinable, and unpaid at the time of such discharge is due and payable immediately. If at such time the employer's accounting unit, responsible for the drawing of payroll checks, is not regularly scheduled to be operational, then the wages due the separated employee shall be made available to the employee no later than six hours after the start of such employer's accounting unit's next regular workday; except that, if the accounting unit is located off the work site, the employer shall deliver the check for wages due the separated employee no later than twenty-four hours after the start of such employer's accounting unit's next regular workday to one of the following locations selected by the employer:
      1. The work site;
      2. The employer's local office; or
      3. The employee's last-known mailing address.
    2. When an employee quits or resigns such employee's employment, the wages or compensation shall become due and payable upon the next regular payday. When a separation of employment occurs, the employer shall make the separated employee's check for wages due available at one of the following locations selected by the employer:
      1. The work site;
      2. The employer's local office; or
      3. The employee's last-known mailing address.
    3. If an employer has made the employee's wages or compensation available at the work site or at the employer's local office under paragraph (a) or (b) of this subsection (1), and the employee has not received the wages or compensation within sixty days after the wages or compensation were due, the employer shall mail the employee's check for wages or compensation due to the employee's last-known mailing address.
  2. Nothing in subsection (1) of this section shall limit the right of an employer to set off any deductions pursuant to section 8-4-105 owing by the employee to the employer or require the payment at the time employment is severed of compensation not yet fully earned under the compensation agreement between the employee and employer, whether written or oral.
  3. [Editor's note: This version of subsection (3) is effective until January 1, 2023.]
    1. If an employer refuses to pay wages or compensation in accordance with subsection (1) of this section, the employee, his or her designated agent, or the division may send a written demand for the payment.
    2. If the employer disputes the amount of wages or compensation claimed by an employee under this article and if, within fourteen days after the written demand is sent, the employer makes a legal tender of the amount that the employer in good faith believes is due, the employer shall not be liable for any penalty unless, in a legal proceeding, including a civil action or an administrative procedure under sections 8-4-111 and 8-4-111.5, the employee recovers a greater sum than the amount so tendered.
    3. If an employee's earned, vested, and determinable wages or compensation is not paid within fourteen days after the written demand is sent in the manner set forth in paragraph (d) of this subsection (3), the employer shall be liable to the employee for the wages or compensation, and a penalty of the sum of the following amounts of wages or compensation due or, if greater, the employee's average daily earnings for each day, not to exceed ten days, until such payment or other settlement satisfactory to the employee is made:
      1. One hundred twenty-five percent of that amount of such wages or compensation up to and including seven thousand five hundred dollars; and
      2. Fifty percent of that amount of such wages or compensation that exceed seven thousand five hundred dollars.
    4. If the employee can show that the employer's failure to pay is willful, the penalty required under paragraph (b) of this subsection (3) shall increase by fifty percent. Evidence that a judgment has, within the previous five years, been entered against the employer for failure to pay wages or compensation is admissible as evidence of willful conduct.
      1. The employer shall send or deliver payment, by check, draft, or voucher in the employee's name, to the employee at the address contained in the written demand; or make the payment by direct deposit authorized under section 8-4-102 (2) if the employee has not revoked the authorization. The employer may, but is not required to, make the payment by direct deposit to an account specified by the employee in the demand, even if the employee has not previously authorized direct deposit of the employee's compensation, or make the payment by another method requested by the employee in the demand, if applicable. If the employee has not previously authorized direct deposit of compensation and the demand does not state an address to which the payment should be mailed, the employer shall make the payment as follows:
        1. To the employee's last-known address according to the records of the employer; or
        2. If applicable and if the employer so elects, as otherwise requested by the employee in the demand.
      2. The employee or his or her designated agent may commence a civil action to recover the penalty set forth in this subsection (3). For an action filed in a small claims court, established pursuant to part 4 of article 6 of title 13, C.R.S., if the employer has not received a written demand at least fourteen days before the employer is served with the complaint or other document commencing the action, service of the complaint or other document serves as the written demand under this subsection (3). If an employer makes a legal tender of the full amount claimed in the action within fourteen days after service of the complaint or other document commencing the action, the employee shall dismiss the action.

        (3) [Editor's note: This version of subsection (3) is effective January 1, 2023.]

        (a) If an employer refuses to pay wages or compensation in accordance with subsection (1) of this section or section 8-4-103 (1)(a), the employee, the employee's designated agent, or the division may send a written demand for the payment on behalf of the employee or a group of similarly situated employees or may file an administrative claim or civil action for the payment.

    6. If the employer disputes the amount of wages or compensation claimed by an employee under this article 4 and if, within fourteen days after the written demand is sent or the administrative claim or civil action is sent to or served on the employer, the employer makes a legal tender of the full amount of all wages that the employee, the employee's designated agent, or the division in good faith demands are owed for any violation of this article 4, the employer shall not be liable for any penalty unless, in a legal proceeding, including a civil action or an administrative procedure under sections 8-4-111 and 8-4-111.5, the employee recovers a greater sum than the amount the employer tendered.

      (b) On or after January 1, 2023, if an employer fails or refuses to pay, in the manner specified in subsection (3)(d) of this section, all earned, vested, and determinable wages or compensation within fourteen days after the written demand is sent or within fourteen days after a civil action or administrative claim for the wages or compensation is sent to or served on the employer, the employer is liable to the employee or group of similarly situated employees for the amount of the earned, vested, determinable, and unpaid wages or compensation plus an automatic penalty of:

      (I) The greater of two times the amount of the unpaid wages or compensation or one thousand dollars; or

      (II) If the employee can show that the employer's failure or refusal to pay wages or compensation was willful, the greater of three times the amount of the unpaid wages or compensation or three thousand dollars.

      (c) Evidence that a judgment or wage determination of the division has, within the previous five years, been entered against the employer for failure to pay wages or compensation is admissible as evidence of willful conduct. An employer's failure or refusal to pay wages or compensation is per se willful if the employee can show that the claim for which a penalty under subsection (3)(b) of this section is assessed is the employer's second or subsequent failure or refusal to pay to employees wages or compensation of the same or similar type within the five years immediately preceding the claim.

      (d) (I) The employer shall send or deliver payment, by check, draft, or voucher in the employee's name, to the employee at the address contained in the written demand or administrative claim or civil action; or make the payment by direct deposit authorized under section 8-4-102 (2) if the employee has not revoked the authorization. The employer may, but is not required to, make the payment by direct deposit to an account specified by the employee in the demand, administrative claim, or court action, even if the employee has not previously authorized direct deposit of the employee's compensation, or make the payment by another method requested by the employee in the demand, administrative claim, or court action, if applicable. If the employee has not previously authorized direct deposit of compensation and the demand, administrative claim, or court action does not state an address to which the payment should be mailed, the employer shall make the payment as follows:

      1. To the employee's last-known address according to the records of the employer; or
      2. If applicable and if the employer so elects, as otherwise requested by the employee in the demand, administrative claim, or court action.

        (II) The employee or the employee's designated agent may commence a civil action to recover the penalty set forth in this subsection (3). If, within fourteen days after a written demand is sent to or an administrative claim or a civil action is sent to or served on the employer, the employer makes a full legal tender of all amounts demanded in good faith for all employees, the employee shall dismiss the action.

  4. If, at the time of the death of any employee, an employer is indebted to the employee for wages or compensation, and no personal representative of the employee's estate has been appointed, such employer shall pay the amount earned, vested, and determinable to the deceased employee's surviving spouse. If there is no surviving spouse, the employer shall pay the amount due to the deceased employee's next legal heir upon the request of such heir. If a personal representative for the employee has been appointed and is known to the employer prior to payment of the amount due to the spouse or other legal heir, the employer shall pay the amount due to such personal representative upon the request of such representative. The employer shall require proof of a claimant's relationship to the deceased employee by affidavit and require such claimant to acknowledge the receipt of any payment in writing. Any payments made by the employer pursuant to the provisions of this section shall operate as a full and complete discharge of the employer's indebtedness to the extent of the payment, and no employer shall thereafter be liable to the deceased employee's estate or to the deceased employee's personal representative. Any amounts received by a surviving spouse or legal heir shall be considered in diminution of the allowance to the spouse or legal heir pursuant to the "Colorado Probate Code", articles 10 to 17 of title 15, C.R.S. Nothing in this section shall create a substantive right that does not exist in any agreement between the employer and the employee.

Source: L. 2003: Entire article amended with relocations, p. 1856, § 1, effective August 6. L. 2007: (3) amended, p. 1677, § 2, effective May 31. L. 2014: (1)(c) added and (3) amended, (SB 14-005), ch. 276, p. 1112, § 4, effective January 1, 2015. L. 2022: (3) amended, (SB 22-161), ch. 370, p. 2628, § 7, effective January 1, 2023.

Editor's note: This section is similar to former § 8-4-104 as it existed prior to 2003, and the former § 8-4-109 was relocated to § 8-4-113.

Cross references: (1) For the legislative declaration contained in the 2007 act amending subsection (3), see section 1 of chapter 381, Session Laws of Colorado 2007.

(2) For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

ANNOTATION

Law reviews. For article, "Employee's Right to C ompensation Accruing After Termination", see 13 C olo. Law. 1643 (1984). For article, "Rights of Terminated Employees: Expanding Remedies", see 21 Colo. Law. 1639 (1992).

Annotator's note. Since § 8-4-109 is similar to § 8-4-104 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.

The purpose of the wage claim act is to ensure that wages are paid in a timely manner and to provide adequate judicial relief in the event wages are not paid. An employer is liable under the act if the employer does not pay an employee wages he or she earned at the time of discharge. Fang v. Showa Entetsu Co., 91 P.3d 419 (Colo. App. 2003).

Vacation pay is within the definition of "wages or compensation". Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979).

Employee entitled to additional wages based on a company "comp time" program. Remote Switch Sys. v. Delangis, 126 P.3d 269 (Colo. App. 2005).

Stock options may be within the definition of "wages or compensation". Therefore, district court improperly dismissed claim for stock option. Montemayor v. Jacor Commc'ns, Inc., 64 P.3d 916 (Colo. App. 2002).

Share of a legal fee was not "wages or compensation". Coffee v. Inman, 728 P.2d 376 (Colo. App. 1986).

Uncollected commissions are wages earned and due at discharge. Where salesmen were terminated prior to the closing and the collection of the commissions by the broker, wages were earned or due at the time of their discharge. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Or at time fully earned. At the time the employment relationship is severed, an employer need not pay, immediately, compensation not yet fully earned under a compensation agreement. But the implication is clear that such wages become immediately due at the time they are fully earned. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

This section fails to offer any relief to employees whose wages are withheld while they are still employed. Consequently, plaintiff had no choice but to wait until he left the company to pursue his claim, because the claim accrued when the employment relationship ended, not when the wages were withheld. Farris v. ITT Cannon, a Div. of ITT Corp., 834 F. Supp. 1260 (D. Colo. 1993).

This section and § 8-4-105 are mutually exclusive. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

And distinguishable. This section creates a right in an employee under one set of circumstances together with a cause of action for a penalty, while § 8-4-105 creates a right in an employee under a different set of circumstances and does not provide for a penalty. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Salesmen employed on a commission basis cannot be terminated with impunity prior to a closing and thus be deprived of large commissions obtained for their employers as a result of their efforts. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Determination of good faith under subsection (3) is matter for trial court. Cortez v. Brokaw, 632 P.2d 635 (Colo. App. 1981); Kennedy v. Leo Payne Broad., 648 P.2d 673 (Colo. App. 1982); Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486 (Colo. 1989); Porter v. Castle Rock Ford Lincoln, 895 P.2d 1146 (Colo. App. 1995).

Trial court properly awarded the statutory penalty pursuant to subsection (3). "Without good faith legal justification" means willfully withheld without good cause; however, willful withholding does not require a showing of malice or similar motivation, rather, there need only be a demonstration that compensation is willfully withheld without good cause. Porter v. Castle Rock Ford Lincoln, 895 P.2d 1146 (Colo. App. 1995).

Jury must make factual determinations regarding whether to assess penalty under this section but is not responsible for determining amount of penalty. Graham v. Zurich Am. Ins. Co., 2012 COA 188, 296 P.3d 347.

A plaintiff granted a money judgment under this section is a winning party entitled to reasonable attorney fees, and a defendant does not become the "winning party" simply because the plaintiff does not prevail on each of its asserted claims. Porter v. Castle Rock Ford Lincoln, 895 P.2d 1146 (Colo. App. 1995).

Entitlement to attorney fees. If plaintiff was required to bring a claim for both wages and penalties under this section and § 8-4-105 in order to be entitled to attorney fees, the reference to § 8-4-105 in § 8-4-114 would be meaningless, contrary to the other language of the statute, and inconsistent with the rules of statutory construction which require that the "entire statute is intended to be effective" and that every word must be given effect, if possible. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Employee commenced an action within the meaning of the wage claim act seeking additional wages owed to him or her. Because employee prevailed in that action, as the "winning party" under that claim, he or she was entitled to an award of attorney fees relating to the prosecution of that claim. Remote Switch Sys. v. Delangis, 126 P.3d 269 (Colo. App. 2005) (decided under former § 8-4-114).

Failure to specify in complaint the precise statute on which claim is based does not prevent plaintiff from seeking attorney fees. Fang v. Showa Entetsu Co., 91 P.3d 419 (Colo. App. 2003) (decided under former § 8-4-114).

Section 8-4-114 applies to recovery under either. Even though it is not clear from the judgment, based on the jury verdict, whether the employee's recovery was under this section or § 8-4-105, § 8-4-114 applies to either. Keeton v. Rike, 38 Colo. App. 505, 559 P.2d 262 (1977).

Attorney fees to be taxed as a cost of suit cannot be construed as an additional penalty, i.e., recoverable only if the judgment in favor of the employee contains a penalty. Such a construction would discourage employees from instituting suit, since the judgment intended to make them whole would be substantially reduced by outlays for attorney fees. The consequence of this latter construction would be to defeat the fundamental purpose of the statute. One cannot assume that an unjust or oppressive result was contemplated by the general assembly. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Penalty assessable under subsection (3) is for wages undisputed but unpaid. Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979).

An employer who fails to pay an employee the wages earned by the employee at the time of the employee's discharge is liable under section, even if the employer had the absolute right to discharge the employee. Lee v. Great Empire Broad., Inc., 794 P.2d 1032 (Colo. App. 1989).

Conversely, even though an employee's discharge may constitute a violation of contract or other legal wrong by the employer, this section is not applicable to the circumstance if the employer pays all wages earned by the employee at the time of the employee's discharge. Lee v. Great Empire Broad., Inc., 794 P.2d 1032 (Colo. App. 1989).

This section has been held to apply to payments becoming due after the date of the discharge, provided those future payments have been "earned," i.e., they are "vested and determinable," at the time of employee's termination. In such circumstances, the future payment must be made immediately upon becoming due or the employer becomes liable for the statutory penalty under the provisions of subsection (3). Lee v. Great Empire Broad., Inc., 794 P.2d 1032 (Colo. App. 1989).

A terminated employee may seek any wages or compensation that was unpaid at the time of termination. However, the right to seek such wages or compensation is subject to the statute of limitations found in § 8-4-122. Hernandez v. Ray Domenico Farms, Inc., 2018 CO 15, 414 P.3d 700.

Liability of corporate officers for wages and attorney fees. Proof of good faith legal justification for refusal to pay wages by an employer is not required for the recovery of wages and attorney fees by an employee. Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo. App. 1992).

An employer's claim of breach of fiduciary duty is not a good faith legal justification for not timely paying an employee's final wages pursuant to this article. Hartman v. Cmty. Responsibility Ctr., Inc., 87 P.3d 202 (Colo. App. 2003).

The officers and agents of a corporation are not jointly and severally liable for payment of employee wages and other compensation the corporation owes to its employees under the employment contract and the wage claim act. Leonard v. McMorris, 320 F.3d 1116 (10th Cir. 2003).

A general manager whose duties included scheduling of overtime work but who had been given no authority or responsibility over wage payment policies was not subject to personal liability under the wage claim act. Major v. Chons Bros., Inc., 53 P.3d 781 (Colo. App. 2002).

Federal Bankruptcy Code does not preempt claims against corporate officers under the state wage claim act. Claims under the wage claim act would be preempted if brought against the corporation because the corporation filed a bankruptcy petition. The Bankruptcy Code does not, however, extend its protections to individuals or entities that have not filed a bankruptcy petition. In the absence of such a statutory provision, no direct conflict exists between the Bankruptcy Code and the wage claim act. Leonard v. McMorris, 106 F. Supp. 2d 1098 (D. Colo. 2000), rev'd on other grounds, 320 F.3d 1116 (10th Cir. 2003).

Evidence held sufficient to support finding that defendant employer owed plaintiff wages and commissions. Brogan v. Bill Eger Motors, Inc., 39 Colo. App. 104, 561 P.2d 377 (1977).

"Without a good-faith legal justification" construed. In order to impose a penalty under this section, a trial court must find from the evidence that the employer willfully withheld compensation due and owing the employee. Beasley v. Mincomp Corp., 683 P.2d 370 (Colo. App. 1984).

Statutory penalty will not be assessed where there was bona fide dispute as to bonus due and payable. Rohr v. Ted Neiters Motor Co., 758 P.2d 186 (Colo. 1988).

Applied in Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981); Paulu v. Lower Ark. Valley Council of Gov'ts, 655 P.2d 1391 (Colo. App. 1982).

8-4-110. Disputes - fees.

  1. [Editor's note: This version of subsection (1) is effective until January 1, 2023.] If, in any action, the employee fails to recover a greater sum than the amount tendered by the employer, the court may award the employer reasonable costs and attorney fees incurred in such action when, in any pleading or other court filing, the employee claims wages or compensation that exceed the greater of seven thousand five hundred dollars in wages or compensation or the jurisdictional limit for the small claims court, whether or not the case was filed in small claims court or whether or not the total amount sought in the action was within small claims court jurisdictional limits. If, in any such action in which the employee seeks to recover any amount of wages or compensation, the employee recovers a sum greater than the amount tendered by the employer, the court may award the employee reasonable costs and attorney fees incurred in such action. If an employer fails or refuses to make a tender within fourteen days after the demand, then such failure or refusal shall be treated as a tender of no money for any purpose under this article.

    (1) [Editor's note: This version of subsection (1) is effective January 1, 2023.]

    1. The court may award the employer reasonable costs and attorney fees incurred in a civil action if, within fourteen days after a written demand letter is sent to or a civil action is served on the employer for unpaid wages or compensation:
      1. The employer makes full legal tender of all amounts demanded in good faith for all employees; and
      2. The employees receiving such tender ultimately fail to recover a total sum that is greater than the amount the employer tendered.
    2. If, in an administrative claim or civil action in which the employee seeks to recover any amount of wages or compensation, the employee recovers a sum greater than the amount tendered by the employer:
      1. The court, in a civil action, may award the employee reasonable costs and attorney fees incurred in the civil action; and
      2. The division, in an administrative claim, may award the employee reasonable costs incurred in the administrative claim and may also award attorney fees to an employee who recovers more than five thousand dollars in unpaid wages in the administrative claim.
    3. If an employer fails or refuses to make a tender within fourteen days after the demand or administrative claim or civil action, then such failure or refusal must be treated as a tender of no money for any purpose under this article 4.

    (1.5) This section shall not apply to a claimant who is found to be an independent contractor and not an employee.

  2. Any person claiming to be aggrieved by violation of any provisions of this article or regulations prescribed pursuant to this article may file suit in any court having jurisdiction over the parties without regard to exhaustion of any administrative remedies.

Source: L. 2003: Entire article amended with relocations, p. 1858, § 1, effective August 6. L. 2007: (1) amended and (1.5) added, p. 1678, § 3, effective May 31. L. 2022: (1) amended, (SB 22-161), ch. 370, p. 2630, § 8, effective January 1, 2023.

Editor's note: Subsection (2) is similar to former § 8-4-123 as it existed prior to 2003.

Cross references: For the legislative declaration contained in the 2007 act amending subsection (1) and enacting subsection (1.5), see section 1 of chapter 381, Session Laws of Colorado 2007.

ANNOTATION

Annotator's note. Since § 8-4-110 is similar to § 8-4-123 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.

Arbitration provision in an employment contract that denied the employee the right to a timely civil action pursuant to this section in a Colorado court is void. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).

This section explicitly creates a civil remedy to enable employees to pursue their claims for past due wages. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).

Award of attorney fees is not conditioned on finding that claim was "frivolous". Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).

Guidelines for exercise of court's discretion to award attorney fees under subsection (1) require consideration of all relevant circumstances, including 10 factors specifically listed. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).

A prevailing employee is presumptively entitled to an award of attorney fees. Lester v. Career Bldg. Acad., 2014 COA 88, 338 P.3d 1054.

Any entity or person who creates and maintains an employment relationship for the payment of wages is subject to the Colorado Wage Claim Act (CWCA); an employer's inability to pay is irrelevant to the determination of attorney fee awards under the CWCA. Lester v. Career Bldg. Acad., 2014 COA 88, 338 P.3d 1054.

"Discretion" does not imply a complete lack of standards. When awarding attorney fees, the court is required to make sufficient findings to permit meaningful appellate review. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).

Denial of a $2,000 "per diem courtesy" for a witness, as an item of costs, was within the court's discretion. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).

Denial of attorney fees incurred on appeal was permissible where defendant did not fully prevail on its challenge to the trial court's award of attorney fees and costs. Carruthers v. Carrier Access Corp., 251 P.3d 1199 (Colo. App. 2010).

Where plaintiff is determined not to have been an "employee" but an independent contractor, award of attorney fees to defendant is proper. Voller v. Gertz, 107 P.3d 1129 (Colo. App. 2004) (decided under former § 8-4-114).

Where defendant prevails solely because the trier of fact determines that plaintiff was not an "employee", but was instead an independent contractor, an award of attorney fees to defendant is improper. Mahan v. Capitol Hill Internal Med. P.C., 151 P.3d 685 (Colo. App. 2006) (following Hyland v. Pikes Peak Capital Corp., 714 P.2d 914 (Colo. App. 1985) and declining to follow Voller v. Gertz, 107 P.3d 1129 (Colo. App. 2004)) (all decided under former § 8-4-114 prior to its repeal in 2003).

The supremacy clause governs when the Federal Arbitration Act (FAA) applies to an employment contract and requires arbitration even in a CWCA claim despite the firm state policy that CWCA claims should not be subject to arbitration. Where a contract containing an arbitration clause evidences a transaction involving commerce, the FAA applies and the agreement to arbitrate must be enforced. Grohn v. Sisters of Charity Health, 960 P.2d 722 (Colo. App. 1998).

8-4-111. Enforcement - duty of director - duties of district or city attorneys - rules.

  1. [Editor's note: This version of subsection (1) is effective until January 1, 2023.]
    1. It is the duty of the director to inquire diligently for any violation of this article, and to institute the actions for penalties or fines provided for in this article in such cases as he or she may deem proper, and to enforce generally the provisions of this article. For wages and compensation earned on and after January 1, 2015, the director may establish an administrative procedure to receive complaints and adjudicate claims for nonpayment of wages or compensation of seven thousand five hundred dollars or less. The procedures may include claims of employees where no interruption of the employer-employee relationship has occurred. The penalties established by section 8-4-109 (3) apply to actions instituted by the director under this article when no interruption of the employer-employee relationship has occurred.
    2. The director shall promulgate rules providing for notice to employees of an employee's rights under this section and section 8-4-111.5, of the limitations on the amount of wages, compensation, and penalties available under the administrative remedy, and of the employee's option to bring a claim for wages and compensation in court without pursuing the administrative remedy unless the employee has accepted payment pursuant to paragraph (e) of subsection (2) of this section.

      (1) [Editor's note: This version of subsection (1) is effective January 1, 2023.]

      (a) (I) It is the duty of the director to:

      1. Inquire diligently for any violation of this article 4;
      2. Institute the actions for penalties or fines provided for in this article 4 in such cases as the director deems proper; and
      3. Enforce generally the provisions of this article 4.

        (II) The director may establish an administrative procedure to receive complaints and adjudicate claims for nonpayment of wages or compensation of seven thousand five hundred dollars or less.

        (III) The procedures established pursuant to subsection (1)(a)(II) of this section may include claims of employees where no interruption of the employer-employee relationship has occurred.

        (IV) The penalties and fines established by section 8-4-109 (3) apply to actions instituted by the director or adjudicated after a complaint was received under this article 4 when no interruption of the employer-employee relationship has occurred.

        (b) The director shall promulgate rules providing for notice to employees of an employee's rights under this section and section 8-4-111.5, of the limitations on the amount of wages, compensation, and penalties available under the administrative remedy, and of the employee's option to bring a claim for wages and compensation in court without pursuing the administrative remedy unless the employee has accepted payment pursuant to subsection (2)(e) of this section.

    3. For purposes of investigating wage complaints and facilitating the collection of unpaid wages before or after a determination pursuant to this section, the division may apply the information-gathering provisions of article 1 of this title 8 to any employer, employee, or other person or entity.
      1. [Editor's note: This version of the introductory portion to subsection (2)(a)(I) is effective until January 1, 2023.] If one or more employees files a wage complaint with the division claiming unpaid wages or compensation of seven thousand five hundred dollars or less per employee, exclusive of penalties and fines, the division shall investigate the wage complaint. The division shall initiate the administrative procedure by sending a notice of complaint to the employer by mail or electronic means in accordance with rules as the director may promulgate when the complaint states a claim for relief. The notice of the complaint must include:
      2. An employer must respond within fourteen days after the complaint is sent.
      3. The division shall issue a determination within ninety days after the notice of complaint is sent unless the division extends the time period by providing advance written notice to the employee and employer stating good cause for the extension of time.

      (2)

      (a) (I) [Editor's note: This version of the introductory portion to subsection (2)(a)(I) is effective January 1, 2023.] If one or more employees files a wage complaint with the division claiming unpaid wages or compensation of seven thousand five hundred dollars or less per employee, exclusive of penalties and fines, the division shall investigate the wage complaint. The division may investigate any wage complaint made on behalf of a group of similarly situated employees. If the division declines to investigate a group complaint, similarly situated employees may consent in writing to participate as parties to that complaint, and the division may pursue a direct investigation informed by and concurrent with that complaint. The division shall initiate the administrative procedure by sending a notice of complaint to the employer by mail or electronic means in accordance with rules as the director may promulgate when the complaint states a claim for relief. The notice of the complaint must include:

      (A) The name of the complainant;

      (B) The nature of the complaint; and

      (C) The amount for which the employer may be liable, including any potential fines or penalties.

    2. If the division does not find a violation based on the wage complaint and any response, including the failure by the employee to pursue the wage complaint, the division shall issue a notice of the dismissal of the complaint and send the notice to all interested parties. The notice must set forth the employee's right to any other relief available under this section or section 8-4-111.5.
    3. [Editor's note: This version of subsection (2)(c) is effective until January 1, 2023.] If the division determines that an employer has violated this article for nonpayment of wages or compensation, the division shall issue a citation and notice of assessment for the amount determined that is owed, which amount must include all wages and compensation owed, penalties pursuant to section 8-4-109, and any finespursuant to section 8-4-113.

      (c) [ Editor's note: This version of subsection (2)(c) is effective January 1, 2023. ] (I) If the division determines that an employer has violated this article 4 for nonpayment of wages or compensation, the division shall issue a citation and notice of assessment for the amount determined that is owed, which amount must include all wages and compensation owed, penalties pursuant to section 8-4-109, and any fines pursuant to section 8-4-113.

      (II) The division shall notify the worker and employee protection unit in the department of law created in section 24-31-1302, at least once every six months, of any determinations pursuant to this subsection (2)(c) that were based, in whole or in part, on a finding that the employer misclassified one or more employees as independent contractors.

    4. To encourage compliance by the employer, if the employer pays the employee all wages and compensation owed within fourteen days after the citation and notice of assessment is sent to the employer, the division may waive or reduce any fines imposed pursuant to section 8-4-113 (1) and reduce by up to fifty percent penalties imposed pursuant to section 8-4-109.
    5. Upon payment by an employer, and acceptance by an employee, of all wages, compensation, and penalties assessed by the division in a citation and notice of assessment issued to the employer, the payment shall constitute a full and complete satisfaction by the employer and bar the employee from initiating or pursuing any civil action or other administrative proceeding based on the wage complaint addressed by the citation and notice of assessment.
    6. [Editor's note: Subsection (2)(f) is effective January 1, 2023.] If an employer fails to pay an employee the amount the division determines, pursuant to subsection (2)(c) of this section, or a hearing officer determines, pursuant to section 8-4-111.5, to be owed within sixty days after the division's determination or the hearing officer's decision, whichever is applicable, the following may be recovered from the employer:
      1. Attorney fees incurred in pursuing a civil action to enforce the division's determination or the hearing officer's decision;
      2. An additional fine equal to fifty percent of the amount determined pursuant to subsection (2)(c) of this section; and
      3. A penalty equal to the greater of fifty percent of the amount determined pursuant to subsection (2)(c) of this section or three thousand dollars.
  3. An employee who has filed a wage complaint with the division pursuant to subsection (2) of this section may elect to terminate the division's administrative procedure within thirty-five days after the issuance of the determination of compliance or citation and notice of assessment by providing a notice to the division. An employee who terminates the division's administrative procedure preserves any private right of action the employee may have. Upon receipt of the notice, the division shall immediately discontinue its action against the employer and revoke any citation and notice of assessment sent.
  4. Except for an appeal pursuant to section 8-4-111.5 (5) or as stated in a citation, notice of assessment, or order filed with the court pursuant to section 8-4-113 (2), any determination made by the division pursuant to this article, or any offer of payment by the employer of the wages made during or in conjunction with a proceeding of the division, is not admissible in any court action.
  5. The division's notice to the employer of a complaint filed pursuant to subsection (2) of this section satisfies the requirement of a written demand as described in section 8-4-109 (3)(a).
  6. Nothing in this section shall be construed to limit the right of the division to pursue any action available with respect to an employee that is identified as a result of a wage complaint or with respect to an employer in the absence of a wage complaint.
  7. Nothing in this section shall be construed to limit the right of the employee to pursue any civil action or administrative proceeding for any claims other than those considered by the division in the employee's wage complaint. The claims considered by the division in the employee's wage complaint are subject to the limitations set forth in paragraph (e) of subsection (2) of this section and subsection (3) of this section.
  8. Nothing in this article shall be construed to limit the authority of the district attorney of any county or city and county or the city attorney of any city to prosecute actions for such violations of this article as may come to his or her knowledge, or to enforce the provisions of this article independently and without specific direction of the director, or to limit the right of any wage claimant to sue directly or through an assignee for any wages or penalty due him or her under the provisions of this article.

Source: L. 2003: Entire article amended with relocations, p. 1858, § 1, effective August 6. L. 2014: Entire section amended, (SB 14-005), ch. 276, p. 1114, § 5, effective May 29. L. 2022: (1), IP(2)(a)(I), and (2)(c) amended and (2)(f) added, (SB 22-161), ch. 370, p. 2631, § 9, effective January 1, 2023.

Editor's note: Subsection (2) is similar to former § 8-4-112 as it existed prior to 2003.

Cross references: For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

8-4-111.5. Hearing officer review and appeals of administrative actions.

  1. Pursuant to policies established by the director by rule, any interested party who is dissatisfied with the division's decision on a wage complaint filed pursuant to section 8-4-111 (2) may file a request for a hearing within thirty-five days after the division's decision is sent. If no request is filed within the thirty-five-day period, the division's decision is final.
    1. If a request is filed pursuant to subsection (1) of this section, the director shall designate a hearing officer. The hearing officer shall have the power and authority to call, preside at, and conduct hearings. In the discharge of the duties imposed by this article, the hearing officer has the power to administer oaths and affirmations, take depositions, certify to official acts, permit parties to participate by telephone, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim pursuant to this article.
      1. In case of a failure to obey a subpoena issued to any person by the hearing officer, upon application by the division or its duly authorized representative, any court of this state has jurisdiction to issue to the person an order requiring him or her to appear before the hearing officer to produce evidence or give testimony touching the matter under investigation or in question. The court may issue an order of contempt to a person who fails to obey the order.
      2. It is a petty offense for a person who, without just cause, fails or refuses to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records in obedience to a subpoena of the hearing officer. Each day the failure or refusal continues is a separate offense.
    3. A person may not be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before a hearing officer or in obedience to the subpoena of the hearing officer on the ground that the testimony or evidence, documentary or otherwise, required of him or her may tend to incriminate the person or subject the person to a penalty or forfeiture. But a person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she is compelled, after having claimed his or her privilege against self-incrimination, to testify or produce evidence, documentary or otherwise; except that the individual testifying is not exempt from prosecution and punishment for perjury in the first degree committed in so testifying.
    1. The hearing officer, after affording all interested parties a reasonable opportunity for a fair hearing pursuant to the provisions of this article and the administrative procedures of the division, shall make a decision on each relevant issue raised, including findings of fact, conclusions of law, and an order.
    2. Evidence and requirements of proof in a hearing conducted pursuant to this section must conform, to the extent practicable, with those in civil nonjury cases in the district courts of this state. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceeding, the person conducting the hearing may receive and consider evidence not admissible under such rules if the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Objections to evidentiary offers may be made and must be noted in the record. The hearing officer shall give effect to the rules of privilege recognized by law. He or she shall exclude incompetent and unduly repetitious evidence. The hearing officer may accept documentary evidence in the form of a copy or excerpt if the original is not readily available; except that, upon request, the party shall be given an opportunity to compare the copy with the original. The division may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. The provisions of the "State Administrative Procedure Act", article 4 of title 24, C.R.S., and particularly section 24-4-105, C.R.S., do not apply to hearings under this article. However, the rule-making provisions of section 24-4-103, C.R.S., shall apply to this article.
    3. When the same or substantially similar evidence is relevant and material to the matters at issue in claims by more than one individual or in claims by a single individual with respect to two or more claimed violations, if, in the judgment of the hearing officer, consolidation of one or more proceedings would not prejudice any interested party, the hearing officer may:
      1. Conduct hearings at the same time and place;
      2. Conduct joint hearings;
      3. Make a single record of the proceedings; and
      4. Consider evidence introduced with respect to one proceeding as if introduced in the others.
    4. The division shall keep a full and complete record of all proceedings in connection with the wage complaint. All testimony at any hearing upon a wage complaint must be recorded but need not be transcribed unless the wage complaint is presented for further review. The division shall promptly provide all interested parties with copies of the hearing officer's decision.
  4. For the convenience or necessity of the employee or the employer, the division shall permit parties to participate in hearings by telephone, including in situations in which the parties would otherwise be required to travel to locations of the division from outside the general vicinity of such locations.
  5. Any party to the administrative proceeding may appeal the hearing officer's decision only by commencing an action for judicial review in the district court of competent jurisdiction within thirty-five days after the date of mailing of the decision by the division. The hearing officer's decision constitutes a final agency action pursuant to section 24-4-106, C.R.S. Judicial review is limited to appeal briefs and the record designated on appeal.

Source: L. 2014: Entire section added, (SB 14-005), ch. 276, p. 1116, § 6, effective May 29. L. 2021: (2)(b)(II) amended, (SB 21-271), ch. 462, p. 3140, § 86, effective March 1, 2022.

Cross references: For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

8-4-112. Enforcement of director subpoenas.

All courts shall take judicial notice of the seal of the director. Obedience to subpoenas issued by the director or his or her duly authorized representative shall be enforced by the courts in any county or city and county, as provided in section 24-4-105 (5), C.R.S., if said subpoenas do not call for any appearance at a distance greater than one hundred miles.

Source: L. 2003: Entire article amended with relocations, p. 1859, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-113 as it existed prior to 2003, and the former § 8-4-112 was relocated to § 8-4-111 (2).

8-4-113. Fines pursuant to enforcement - wage theft enforcement fund - created - administrative lien and levy of employer assets - definition.

      1. If a case against an employer is enforced pursuant to section 8-4-111, any employer who without good faith legal justification fails to pay the wages of each of the employer's employees shall forfeit to the people of the state of Colorado a fine in an amount determined by the director or hearing officer but no more than the sum of fifty dollars per day for each such failure to pay each employee, commencing from the date that such wages first became due and payable. (1) (a) (I) If a case against an employer is enforced pursuant to section 8-4-111, any employer who without good faith legal justification fails to pay the wages of each of the employer's employees shall forfeit to the people of the state of Colorado a fine in an amount determined by the director or hearing officer but no more than the sum of fifty dollars per day for each such failure to pay each employee, commencing from the date that such wages first became due and payable.
      2. The division may collect the fine imposed pursuant to this subsection (1)(a) through its citation and notice of assessment issued pursuant to section 8-4-111 (2) or after a hearing conducted pursuant to section 8-4-111.5.
    2. The director or hearing officer shall impose a fine of two hundred fifty dollars on an employer who fails to respond to a notice of complaint or to any other notice from the division to which a response is required. The director or hearing officer may waive or reduce the fine only if the director or hearing officer finds good cause for an extension of the time for the employer to file the response.
    1. The division may, and, on or after January 1, 2023, at the request of a worker shall, file a certified copy of any citation, notice of assessment, or order imposing wages due, fines, penalties, or other relief pursuant to this article 4 with the clerk of any court having jurisdiction over the parties at any time after the entry of the citation, notice, or order. The division may file one certified copy of the citation, notice, or order for all amounts owed to, or for other relief for, all employees.
    2. The clerk of the court shall record the citation, notice, or order in the judgment book of the court and make an entry in the judgment docket. Upon recording, the citation, notice of assessment, or order has the effect of and may be executed as a judgment of the court.
      1. Upon recording pursuant to subsection (2)(b) of this section, the judgment is sufficient to support the issuance of writs of garnishment in the manner provided by law in the case of a judgment that is wholly or partially unsatisfied.
      2. The court shall mail a copy of the judgment to the employer within three days after the division has filed the citation, notice, or order with the clerk of the court.
    1. The division shall transmit all fines collected for the state pursuant to this section or section 8-1-114 (2), 8-1-116 (2), 8-1-117 (2), or 8-1-140 (2) to the state treasurer, who shall credit the same to the wage theft enforcement fund, which fund is created and referred to in this section as the "fund". The money in the fund is subject to annual appropriation by the general assembly to the division for the direct and indirect costs associated with implementing this article 4.
    2. The state treasurer may invest any money in the fund not expended for the purpose of this article 4 as provided by law. The state treasurer shall credit all interest and income derived from the investment and deposit of money in the fund to the fund. Any unexpended and unencumbered money remaining in the fund at the end of a fiscal year remains in the fund and must not be credited or transferred to the general fund or another fund.
    1. On or after January 1, 2023, if an employer fails to pay wages determined to be due to the employer's employees or fines or penalties determined to be due pursuant to this article 4, within sixty days after receiving a written employee request or upon its own initiative, the division may issue a notice of administrative lien and levy to the employer or any other person that has possession, custody, or control of the employer's assets. The division may issue the notice of administrative lien and levy when an employer is past due on paying wages determined to be due to its employees and any fines or penalties determined to be due pursuant to this article 4 without an order staying or reversing the applicable deadline for payment. The notice must include the following statements and information:
      1. The name and address of the person that has possession, custody, or control of the employer's assets;
      2. The employer's name, last-known address, and taxpayer identification number, if known;
      3. The total amount owed for past-due wages, fines, and penalties, as identified by the division as provided in this article 4;
      4. The names of all employees determined to be owed wages or penalties and the amounts due to each named employee;
      5. A statement that:
        1. The notice of administrative lien and levy takes effect, and is superior to any other lien on the same assets that is filed later in time;
        2. Unless the division consents to an earlier disposition, the person may not transfer or dispose of the assets in the possession, custody, or control of the person from the date the person received the notice until further order; and
        3. A person that receives notice pursuant to this subsection (4) and that transfers or disposes of the assets after receipt of the notice is liable for the amount of the past-due wages, fines, and penalties owed by the employer, to the extent of the value of the transferred or disposed of assets;
      6. Instructions on the remittance, transmission, or transfer of the withheld or surrendered amounts or other assets, including the requirement that each check, remittance, transmission, or transfer:
        1. For past-due wages and penalties, be payable to, transmitted to, or transferred to the employee, employees, payee, or transferee designated by the division in the notice and sent to the address indicated in the notice or otherwise transmitted or transferred as specified in the notice;
        2. For fines, be payable to, transmitted to, or transferred to the division or other payee or transferee designated by the division in the notice and sent to the address indicated in the notice or otherwise transmitted or transferred as specified in the notice;
        3. Be surrendered within thirty days after the date of the notice of the lien and levy; and
        4. Include the division case number on the face of the check, remittance, transmission, or transfer;
      7. A statement that, if insufficient assets are available to cover all amounts determined to be owed by the employer, the person must first pay wages and penalties determined to be due to the employee or employees and thereafter pay fines determined to be owed to the state;
      8. A statement that, if no assets are available for surrender, the person must return the remittance notice within thirty days after the date of the notice of the lien and levy; and
      9. A statement that the administrative lien and levy is automatically inactivated once the person returns the remittance notice or surrenders the assets held by the person.
      1. In order to attach and collect an employer's assets that are in the possession, custody, or control of another person for purposes of collecting past-due wages, fines, and penalties, the division is authorized to serve, by first-class or overnight mail, by personal delivery, or, if mutually agreed upon, through electronic means published by the person, a notice of administrative lien and levy on any person that has possession, custody, or control of the employer's assets. A notice of administrative lien and levy is effective if it is delivered or mailed to the principal office or any branch office of the person that has possession, custody, or control of the employer's assets.
      2. The administrative lien and levy applies against all assets of the employer that are in the possession, custody, or control of the person served with the notice at the time of, and within sixty days after, receipt of the notice.
      3. The division shall provide a copy of the administrative lien and levy to the employer and shall include information on the employer's right to file an applicable exception, exemption, or appeal, as specified by the director by rule, including an exception, exemption, or appeal for custodial accounts pursuant to section 11-50-110, the earnings limitations set forth in section 13-54-104 (3), or the appeal policy for jointly owned or shared accounts.
      4. Upon satisfaction of the past-due wage, fine, or penalty obligations giving rise to the administrative lien and levy, the employer may request and be provided confirmation that the lien is extinguished.
    3. This subsection (4) applies to all past-due wage, fine, and penalty obligations ordered as part of any proceeding, regardless of when the order was entered, and all employers that owe wages, fines, or penalties are subject to notice of administrative lien and levy as described in this subsection (4).
    4. The director may adopt rules as necessary to implement this subsection (4).
    5. As used in this subsection (4), "asset" means any:
      1. Real, intangible, or personal property of an employer;
      2. An employer's right to real, intangible, or personal property;
      3. Payments due to and accounts receivable of an employer; and
      4. Credits or debts involving the employer.

Source: L. 2003: Entire article amended with relocations, p. 1859, § 1, effective August 6. L. 2014: Entire section amended, (SB 14-005), ch. 276, p. 1119, § 7, effective January 1, 2015. L. 2022: Entire section amended, (SB 22-161), ch. 370, p. 2633, § 10, effective August 10.

Editor's note: This section is similar to former § 8-4-109 as it existed prior to 2003, and the former § 8-4-113 was relocated to § 8-4-112.

Cross references: For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

8-4-114. Criminal penalties.

  1. Any employer who violates the provisions of section 8-4-103 (6) commits:
    1. A petty offense if the amount is less than three hundred dollars;
    2. A class 2 misdemeanor if the amount is three hundred dollars or more but less than one thousand dollars;
    3. A class 1 misdemeanor if the amount is one thousand dollars or more but less than two thousand dollars;
    4. A class 6 felony if the amount is two thousand dollars or more but less than five thousand dollars;
    5. A class 5 felony if the amount is five thousand dollars or more but less than twenty thousand dollars;
    6. A class 4 felony if the amount is twenty thousand dollars or more but less than one hundred thousand dollars;
    7. A class 3 felony if the amount is one hundred thousand dollars or more but less than one million dollars; and
    8. A class 2 felony if the amount is one million dollars or more.
  2. In addition to any other penalty imposed by this article 4, any employer or agent of an employer who willfully refuses to pay wages or compensation as provided in this article 4, or falsely denies the amount of a wage claim, or the validity thereof, or that the same is due, with intent to secure for himself, herself, or another person any discount upon such indebtedness or any underpayment of such indebtedness or with intent to annoy, harass, oppress, hinder, coerce, delay, or defraud the person to whom such indebtedness is due, commits theft as defined in section 18-4-401.

Source: L. 2003: Entire article amended with relocations, p. 1859, § 1, effective August 6. L. 2019: (2) amended, (HB 19-1267), ch. 182, p. 2059, § 3, effective January 1, 2020. L. 2021: (1) amended, (SB 21-271), ch. 462, p. 3140, § 87, effective March 1, 2022.

Editor's note: This section is similar to former §§ 8-4-116 and 8-4-117 as they existed prior to 2003, and the former § 8-4-114 was repealed.

Cross references: For the legislative declaration in HB 19-1267, see section 1 of chapter 182, Session Laws of Colorado 2019.

8-4-115. Certificate of registration required.

No person shall engage in activities as a field labor contractor unless the person first obtains a certificate of registration from the division and unless such certificate is in full force and effect and in such person's immediate possession.

Source: L. 2003: Entire article amended with relocations, p. 1860, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-118 as it existed prior to 2003, and the former § 8-4-115 was relocated to § 8-4-103 (6).

8-4-116. Issuance of certificate of registration.

  1. The director, after appropriate investigation, shall issue a certificate of registration to any person who:
    1. Has executed and filed with the director a written application subscribed and sworn to by the applicant containing such information concerning his or her conduct and method of operation as a field labor contractor as the director may require in order to effectively carry out the provisions of this article;
    2. Has consented to designation of the director as the agent available to accept service of process for any action against such field labor contractor at any and all times when such field labor contractor has departed from the jurisdiction of this state or has become unavailable to accept service;
    3. Has demonstrated evidence to the director that he or she has satisfied the insurance requirements of articles 40 to 47 of this title.
  2. Upon notice and hearing in accordance with rules prescribed by the director, the director may refuse to issue and may suspend, revoke, or refuse to renew a certificate of registration of any field labor contractor if the director finds that such field labor contractor:
    1. Knowingly has made any misrepresentation or false statement in his or her application for a certificate of registration or any renewal thereof;
    2. Knowingly has given false or misleading information to any migratory laborer concerning the terms, conditions, or existence of agricultural employment;
    3. Has failed, without justification, to perform agreements entered into or to comply with arrangements made with farm operators;
    4. Has failed, without justification, to comply with the terms of any working arrangements he or she has made with migratory laborers;
    5. Has permitted his or her insurance maintained pursuant to the requirements of paragraph (c) of subsection (1) of this section to terminate, lapse, or otherwise become inoperative;
    6. Is not in fact the real party in interest in any such application or certificate of registration and that the real party in interest is a person, firm, partnership, association, or corporation which previously has been denied a certificate of registration; has had a certificate of registration suspended or revoked; or which does not presently qualify for a certificate of registration.

Source: L. 2003: Entire article amended with relocations, p. 1860, § 1, effective August 6.

Editor's note:

  1. This section is similar to former § 8-4-119 as it existed prior to 2003, and the former § 8-4-116 was relocated to § 8-4-114 (1).
  2. Articles 40 to 47 of this title 8, referenced in subsection (1)(c), are the provisions of the "Workers' Compensation Act of Colorado".

8-4-117. Additional obligations.

  1. Every field labor contractor shall:
    1. Carry a certificate of registration at all times while engaging in activities as a field labor contractor and exhibit the same to all persons with whom he or she intends to deal in the capacity of a field labor contractor;
    2. Ascertain and disclose in writing to each migratory laborer, in a language in which the migratory laborer is fluent at the time the migratory laborer is recruited, the following information:
      1. The area of employment;
      2. The crops and operations on which the migratory laborer may be employed;
      3. Transportation, housing, and insurance to be provided to the migratory laborer;
      4. The wage rate to be paid;
      5. The charges by the field labor contractor for his or her services; and
      6. The existence of any strikes at the place of contracted employment;
    3. Promptly pay or deliver, when due to the migratory laborer entitled thereto, all moneys or other things of value entrusted to the field labor contractor by or on behalf of such migratory laborer.

Source: L. 2003: Entire article amended with relocations, p. 1861, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-120 as it existed prior to 2003, and the former § 8-4-117 was relocated to § 8-4-114 (2).

8-4-118. Authority to obtain information.

The director or the director's designated representative may investigate and gather data pertinent to matters that may aid in carrying out the provisions of this article. In any case where a complaint has been filed with the director or the director's designated representative regarding a violation of this article, or where the director has reasonable grounds to believe that a field labor contractor has violated provisions of this article, the director or the director's designated representative may investigate and issue subpoenas as provided by section 8-4-112 requiring the attendance and testimony of any witness or the production of any evidence in connection with such investigation.

Source: L. 2003: Entire article amended with relocations, p. 1861, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-121 as it existed prior to 2003, and the former § 8-4-118 was relocated to § 8-4-115.

8-4-119. Penalty provisions.

  1. Any field labor contractor who commits a violation of any provision of this article or implementing regulation shall be subject to a civil penalty of not more than two hundred fifty dollars for each violation. The penalty shall be assessed by the director pursuant to a published schedule of penalties and after written notice and after an opportunity for hearing under procedures established by the director. This provision as to civil penalties shall not exclude the possibility of criminal penalties as set forth in this article.
  2. The director, in the director's discretion, may grant a reasonable period of time, but in no event longer than ten days after the day of notification, for correction of the violation. In the event the violation is corrected within that period, no penalty shall be imposed.

Source: L. 2003: Entire article amended with relocations, p. 1861, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-122 as it existed prior to 2003, and the former § 8-4-119 was relocated to § 8-4-116.

8-4-120. Discrimination and retaliation prohibited - employee protections - criminal penalties - civil remedies.

  1. An employer shall not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate or retaliate against any employee who has:
    1. Filed any complaint or instituted or caused to be instituted any proceeding under this article 4 or any other law or rule related to wages or hours; or
    2. Testified or provided other evidence, or may testify or provide other evidence, in any proceeding on behalf of the employee or another person regarding afforded protections under this article 4 or under any other law or rule related to wages or hours.
  2. An employer who violates this section commits a class 2 misdemeanor.
    1. An employee who alleges a violation of subsection (1) of this section may file a civil action in a court of competent jurisdiction against the employer alleged to have violated this section to seek legal and equitable relief as appropriate to remedy the violation, including:
      1. Back pay;
      2. Reinstatement of employment or, if reinstatement is not feasible, front pay;
      3. The payment of wages unlawfully withheld;
      4. Interest on unpaid wages at a rate of twelve percent per annum from the date the wages were first due;
      5. The payment of a penalty of fifty dollars per day for each employee whose rights under this section were violated and for each day that the violation occurred or continued;
      6. Liquidated damages in an amount equal to the greater of two times the amount of the unpaid wages or two thousand dollars; and
      7. Injunctive relief.
    2. If the employee prevails in a civil action brought pursuant to this subsection (3), the court shall award the employee reasonable attorney fees and costs.
  4. The division may investigate and enforce discrimination or retaliation prohibited by this article 4 or article 6 of this title 8 and, after investigation, may order the relief specified in subsection (3)(a) of this section.

Source: L. 2003: Entire article amended with relocations, p. 1862, § 1, effective August 6. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3141, § 88, effective March 1, 2022. L. 2022: Entire section amended, (SB 22-161), ch. 370, p. 2636, § 11, effective August 10.

Editor's note: This section is similar to former § 8-4-124 as it existed prior to 2003, and the former § 8-4-120 was relocated to § 8-4-117.

ANNOTATION

Employee unable to establish prima facie case of retaliation as he is unable to show that employer's counterclaims, which were filed in response to his wage claim lawsuit and have an arguable basis cognizable in law, constitute an adverse employment action. Ott v. ChaCha in Art LLC, 506 F. Supp. 3d 1133 (D. Colo. 2020).

8-4-121. Nonwaiver of employee rights.

Any agreement, written or oral, by any employee purporting to waive or to modify such employee's rights in violation of this article shall be void.

Source: L. 2003: Entire article amended with relocations, p. 1862, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-125 as it existed prior to 2003, and the former § 8-4-121 was relocated to § 8-4-118.

ANNOTATION

Annotator's note. Since § 8-4-121 is similar to § 8-4-125 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.

This section, by its plain language, voids any agreement, written or oral, that constitutes a waiver or modification of any employee's rights under the wage claim act. Morris v. Towers Fin. Corp., 916 P.2d 678 (Colo. App. 1996).

The plain meaning of this section is that an agreement to arbitrate that conflicts with the rights established by the wage claim act cannot be enforced against the employee. Lambdin v. Dist. Ct. of Arapahoe Cty., 903 P.2d 1126 (Colo. 1995).

The supremacy clause governs when the Federal Arbitration Act (FAA) applies to an employment contract and requires arbitration even in a wage claim act claim despite the firm state policy that wage claim act claims should not be subject to arbitration. Where a contract containing an arbitration clause evidences a transaction involving commerce, the FAA applies and the agreement to arbitrate must be enforced. Grohn v. Sisters of Charity Health, 960 P.2d 722 (Colo. App. 1998); Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771 (Colo. App. 2000).

The FAA preempts this section to the extent that an agreement to arbitrate a dispute relating to employee compensation is not void and that public policy is not thereby offended. Byerly v. Kirkpatrick Pettis Smith Polian, Inc., 996 P.2d 771 (Colo. App. 2000).

Since wage claim act does not create a substantive right to compensation for labor and services performed, employee's right to compensation is governed by the employment agreement and not by the statute; therefore, employment contract is not void under this section. Barnes v. Van Schaack Mortg., 787 P.2d 207 (Colo. App. 1990).

Arbitration provision in an employment contract that denies the employee the right to a timely civil action in a Colorado court pursuant to § 8-2-123 is void. Lambdin v. Dist. Ct. of Arapahoe Ct., 903 P.2d 1126 (Colo. 1995).

8-4-122. Limitation of actions.

All actions brought pursuant to this article shall be commenced within two years after the cause of action accrues and not after that time; except that all actions brought for a willful violation of this article shall be commenced within three years after the cause of action accrues and not after that time.

Source: L. 2003: Entire article amended with relocations, p. 1862, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-126 as it existed prior to 2003, and the former § 8-4-122 was relocated to § 8-4-119.

ANNOTATION

A terminated employee may seek any wages or compensation that was unpaid at the time of termination pursuant to § 8-4-109. However, the right to seek such wages or compensation is subject to the statute of limitations found in this section. Hernandez v. Ray Domenico Farms, Inc., 2018 CO 15, 414 P.3d 700.

8-4-123. Termination of occupancy pursuant to contract of employment - legislative declaration.

  1. The general assembly hereby finds, determines, and declares that many businesses, such as nursing homes or building management companies, either desire or are required by law to have staff on premises at all times. As part of the compensation for such employees, many employers offer housing to employees. However, once that employment relationship ceases, it may become undesirable for such employees to occupy the premises for many reasons, including the safety of the employer's patients, clients, customers, or tenants. Under traditional landlord and tenant law, such employees may have established the technical or legal right to occupy the premises for a fixed term that continues far beyond the cessation of the employment relationship. However, in employment situations, such occupancy is not a tenancy, but a license to occupy the premises pursuant to an employment relationship. The occupancy of the premises by the employee is not entered into by the employer for the purpose of providing housing, but merely as a means to provide services to the employer's patients, clients, customers, or tenants. In certain cases, it may be necessary to curtail the occupancy of former employees in order to protect the rights or safety of an employer's tenants or patients.
    1. Pursuant to a written agreement meeting the requirements of paragraph (b) of this subsection (2), a license to occupy the premises entered into as part of an employee's compensation may be terminated at any time after the employment relationship ceases between an employer and employee. A termination of a license to occupy the premises shall be effective three days after the service of written notice of termination of a license to occupy the premises.
    2. An agreement made pursuant to this section shall be in writing and shall include the following:
      1. The names of the employer and employee;
      2. A statement that the license to occupy the premises is provided to the employee as part of the employee's compensation and is subject to termination at any time after the employment relationship ceases;
      3. The address of the premises; and
      4. The signature of both the employer and the employee.
    3. The notice of termination of a license to occupy the premises shall describe the premises and shall set forth the time when the license to occupy the premises will terminate. The notice shall be signed by the employer or the employer's agent or attorney.
  3. If an employee fails to vacate the premises within three days after the receipt of the notice of termination of the license to occupy the premises, the employer may contact the county sheriff to have the employee removed from the premises. The county sheriff shall remove the employee and any personal property of the employee from the premises upon the showing to the county sheriff of the notice of termination of the license to occupy the premises and agreement pursuant to which the license to occupy the premises was granted.

Source: L. 2003: Entire article amended with relocations, p. 1862, § 1, effective August 6.

Editor's note: This section is similar to former § 8-4-127 as it existed prior to 2003, and the former § 8-4-123 was relocated to § 8-4-110 (2).

8-4-124. Third-party food delivery services - prohibitions - penalties - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Retail food establishment" means a retail food establishment, as defined in section 25-4-1602 (14), that pays an annual license fee as required by section 25-4-1607 (1)(a), (1.5)(a)(I), or (1.5)(b)(I). "Retail food establishment" does not include grocery stores or convenience stores.
    2. "Third-party delivery service platform" means a third-party food delivery service's online or mobile platform on which a consumer can view and order available products.
    3. "Third-party food delivery service" means any company or website, mobile application, or other internet service that offers or arranges for the sale and same-day delivery or same-day pickup of prepared food or beverages from a retail food establishment.
  2. A third-party food delivery service shall not take and arrange for the delivery or pickup of an order from a retail food establishment without the retail food establishment's consent.
  3. A retail food establishment included on a third-party delivery service platform in violation of subsection (2) of this section may bring an action in a court of competent jurisdiction for damages, a civil penalty not to exceed one thousand dollars per violation, and injunctive relief. The prevailing party in an action brought pursuant to this subsection (3) is entitled to reasonable attorney fees.

Source: L. 2021: Entire section added, (SB 21-035), ch. 208, p. 1083, § 1, effective September 7.

8-4-125. Supplemental health-care staffing agencies - annual certification - reporting - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. "Department" means the department of labor and employment.
    2. "Health-care facility" means a facility licensed by the department of public health and environment pursuant to section 25-1.5-103 (1)(a).
    3. "Health-care worker" means a person employed by a supplemental health-care staffing agency for temporary placement in a health-care facility.
    4. "Health-care worker platform" or "platform" means any person, firm, corporation, partnership, or association that maintains a system or technology that provides a media or internet platform for a health-care worker to be listed and identified as available for hire by health-care facilities seeking health-care workers. Under a platform, the health-care facility sets the hourly rates and other terms of hire and the health-care worker, as an independent contractor and not as an employee or agent of the entity that maintains the platform, decides whether to agree to the hourly rates and other terms of hire.
      1. "Supplemental health-care staffing agency" or "staffing agency" means an individual or type of organization, including any partnership, limited liability partnership, limited liability company, limited liability limited partnership, association, trust, joint stock company, insurance company, or corporation, whether domestic or foreign, engaged in the business of providing health-care workers who are employees of the staffing agency, and, for a fee, assigning them to temporary placements in health-care facilities.
      2. "Supplemental health-care staffing agency" does not include:
        1. An individual acting as an independent contractor who is only engaged in providing the individual's services on a temporary basis to health-care facilities; or
        2. A health-care worker platform.
    1. It is unlawful for any person to operate a supplemental health-care staffing agency in this state without completing the staffing agency's initial certification and required annual certification with the department pursuant to section 8-70-114.
    2. Any person who violates this section commits a civil infraction and may be subject to fines determined by the department.
    3. On or before September 1, 2022, and September 1 each year thereafter, the department of public health and environment and the department of health care policy and financing shall provide the department with a list of all known names and contact information for supplemental health-care staffing agencies operating in the state.
    1. No later than October 1, 2022, each supplemental health-care staffing agency shall maintain detailed data described in subsection (3)(b) of this section. By the deadlines established in this subsection (3)(a), each staffing agency shall provide reports to the department that contain the information and certifications set forth in subsection (3)(b) of this section. Beginning April 30, 2023, and continuing each April 30 thereafter, a staffing agency operating in the state shall provide a report covering the period between October 1 of the previous year and March 31 of the current year. For the reporting period between April 1 and September 30 of the current year, the staffing agency shall file a report annually, beginning October 31, 2023, and continuing each October 31 thereafter.
    2. At a minimum, a staffing agency's biannual reports required pursuant to subsection (3)(a) of this section must include:
      1. The name of each direct and indirect owner of the staffing agency;
      2. If the staffing agency's direct owner is a corporation, copies of the articles of incorporation and current bylaws;
      3. A detailed listing of the average amount charged during each quarter of the reporting period to a health-care facility for each category of health-care worker providing services to the health-care facility;
      4. A detailed listing of the average amount paid during each quarter of the reporting period to health-care workers for their services for each category of health-care worker providing services;
      5. The staffing agency's certification that each health-care worker contracted to a health-care facility during the reporting period had a current, unrestricted license or certification in good standing and met the training and continuing education standards for the position with the health-care facility throughout the entirety of the reporting period;
      6. The staffing agency's certification that each health-care worker contracted to a health-care facility had successfully completed all background checks required by federal and state law, rule, and regulation relating to the health-care position and health-care facility in which the health-care worker was placed during the reporting period; and
      7. The staffing agency's certification that the staffing agency maintained professional liability insurance throughout the entirety of the reporting period for each health-care worker contracted to a health-care facility during the reporting period.
    3. The department shall establish the manner and form of reporting pursuant to this subsection (3).
      1. The department shall impose a fine in the amount of five hundred dollars for a report required pursuant to subsection (3) of this section that: (4) (a) (I) The department shall impose a fine in the amount of five hundred dollars for a report required pursuant to subsection (3) of this section that:
        1. Is not submitted within thirty days after the reporting deadline; or
        2. The department deems noncompliant with the requirements of subsection (3) of this section.
      2. The department may waive the fine if the staffing agency is able to show good cause for the delay in submitting the report or for submitting a noncompliant report.
    2. The department shall send notice to each staffing agency that:
      1. Has not submitted the required biannual report on or before the deadline; or
      2. Has not submitted a compliant report.
    3. If the staffing agency does not submit a compliant report within thirty days after the date of the department's notice of noncompliance, the department shall impose a fine of ten thousand dollars, and for a failure in any subsequent reporting period to timely submit a compliant report within thirty days after the department's notice of noncompliance, a fine of twenty thousand dollars. The department may waive or reduce the staffing agency's fine if the staffing agency is able to show good cause for delaying the submission of the report.
    4. The department shall transmit any penalties imposed and collected pursuant to this subsection (4) to the state treasurer, who shall credit the money to the wage theft enforcement fund created in section 8-4-113 (3).
  5. The department shall provide copies of the biannual reports required pursuant to subsection (3) of this section to the department of public health and environment and to the department of health care policy and financing for purposes of analyzing the information provided by the supplemental health-care staffing agencies and determining the need for regulation of staffing agencies.

Source: L. 2022: Entire section added, (SB 22-210), ch. 371, p. 2642, § 1, effective August 10.

ARTICLE 5 WAGE EQUALITY

Law reviews: For article, "An Overview of Federal and State Wage-Hour Laws -- Part II", see 14 C olo. Law. 781 (1985); for article, "Sex-based Wage Discrimination: A Management View", see 62 Den. U. L. Rev. 393 (1985); for note, " C omparable Worth: The Next Step Toward Pay Equity Under Title VII", see 62 Den. U. L. Rev. 417 (1985); for article, "Legal Overview of Equal Pay and Comparable Worth", see 15 Colo. Law. 1201 (1986); for article, "Colorado's Equal Pay for Equal Work Act: What Employment Counsel Need to Know", see 48 Colo. Law. 36 (Oct. 2019); for article, "Mind the Gap Practical Solutions to Minimize Pay Equity Claims", 49 Colo. Law. 30 (May 2020).

Section

PART 1 WAGE EQUALITY REGARDLESS OF SEX

PART 2 TRANSPARENCY IN PAY AND OPPORTUNITIES FOR PROMOTION AND ADVANCEMENT

PART 1 WAGE EQUALITY REGARDLESS OF SEX

8-5-101. Definitions.

As used in this article 5, unless the context otherwise requires:

  1. Repealed.
  2. "Director" means the director of the division of labor standards and statistics.
  3. Repealed.
  4. "Employee" means a person employed by an employer.
  5. "Employer" means the state or any political subdivision, commission, department, institution, or school district thereof, and every other person employing a person in the state.
  6. Repealed.
  7. "Liquidated damages" means damages to compensate an employee for the delay in receiving amounts due as a result of an employer's violation of this article 5. "Liquidated damages" does not constitute a penalty to the employer.
  8. "Sex" means an employee's gender identity.
  9. "Wage rate" means:
    1. For an employee paid on an hourly basis, the hourly compensation paid to the employee plus the value per hour of all other compensation and benefits received by the employee from the employer; and
    2. For an employee paid on a salary basis, the total of all compensation and benefits received by the employee from the employer.

Source: L. 55: p. 503, § 1. CRS 53: § 80-23-1. C.R.S. 1963: § 80-3-1. L. 69: p. 593, § 68. L. 86: (1) repealed, p. 502, § 125, effective July 1. L. 2016: (2) and (3) amended, (HB 16-1323), ch. 131, p. 378, § 11, effective August 10. L. 2019: IP, (4), and (5) amended and (7), (8), and (9) added, (SB 19-085), ch. 247, p. 2412, § 3, effective January 1, 2021; (3)(b) and (6)(b) added by revision, (SB 19-085), ch. 247, pp. 2412, 2417, §§ 3, 9.

Editor's note: Subsections (3)(b) and (6)(b) provided for the repeal of subsections (3) and (6), respectively, effective January 1, 2021. (See L. 2019, pp. 2412, 2417.)

Cross references: For the short title ("Equal Pay for Equal Work Act") and the legislative declaration in SB 19-085, see sections 1 and 2 of chapter 247, Session Laws of Colorado 2019.

8-5-102. Wage discrimination prohibited.

  1. An employer shall not discriminate between employees on the basis of sex, or on the basis of sex in combination with another protected status as described in section 24-34-402 (1)(a), by paying an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work, regardless of job title, based on a composite of skill; effort, which may include consideration of shift work; and responsibility, except where the employer demonstrates each of the following:
    1. That the wage rate differential is based on:
      1. A seniority system;
      2. A merit system;
      3. A system that measures earnings by quantity or quality of production;
      4. The geographic location where the work is performed;
      5. Education, training, or experience to the extent that they are reasonably related to the work in question; or
      6. Travel, if the travel is a regular and necessary condition of the work performed;
    2. That each factor relied on in subsection (1)(a) of this section is applied reasonably;
    3. That each factor relied on in subsection (1)(a) of this section accounts for the entire wage rate differential; and
    4. That prior wage rate history was not relied on to justify a disparity in current wage rates.
  2. An employer shall not:
    1. Seek the wage rate history of a prospective employee or rely on the wage rate history of a prospective employee to determine a wage rate;
    2. Discriminate or retaliate against a prospective employee for failing to disclose the prospective employee's wage rate history;
    3. Discharge, or in any manner discriminate or retaliate against, an employee for invoking this section on behalf of anyone or assisting in the enforcement of this subsection (2);
    4. Discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with an employee or other person because the employee or person inquired about, disclosed, compared, or otherwise discussed the employee's wage rate;
    5. Prohibit, as a condition of employment, an employee from disclosing the employee's wage rate; or
    6. Require an employee to sign a waiver or other document that:
      1. Prohibits the employee from disclosing wage rate information; or
      2. Purports to deny the employee the right to disclose the employee's wage rate information.

Source: L. 55: p. 503, § 2. CRS 53: § 80-23-2. C.R.S. 1963: § 80-3-2. L. 2019: Entire section amended, (SB 19-085), ch. 247, p. 2413, § 4, effective January 1, 2021.

Cross references: (1) For minimum wages for workers, see article 6 of this title 8.

(2) For the short title ("Equal Pay for Equal Work Act") and the legislative declaration in SB 19-085, see sections 1 and 2 of chapter 247, Session Laws of Colorado 2019.

8-5-103. Enforcement - rules - complaints.

  1. The director is authorized to create and administer a process to accept and mediate complaints and to provide legal resources concerning alleged violations of section 8-5-102, and to promulgate rules as necessary for this purpose. The process created and administered by the director does not affect or prevent the right of an aggrieved person from commencing a civil action pursuant to subsection (2) of this section.
  2. A person aggrieved by a violation of section 8-5-102 may commence a civil action in district court no later than two years after the violation occurs. A violation of section 8-5-102 (1) occurs on each occasion that a person is affected by wage discrimination, including each occasion that a discriminatory wage rate is paid.
  3. A person aggrieved by a violation of section 8-5-102 may obtain relief for back pay for the entire time the violation continues, not to exceed three years.
  4. If a civil action is commenced under this section, any party to the civil action may demand a trial by jury.
  5. Nothing in this section prevents an aggrieved person from filing a charge with the Colorado civil rights division pursuant to section 24-34-306.

Source: L. 55: p. 504, § 3. CRS 53: § 80-23-3. C.R.S. 1963: § 80-3-3. L. 69: p. 593, § 69. L. 86: Entire section amended, p. 472, § 31, effective July 1. L. 2019: Entire section amended, (SB 19-085), ch. 247, p. 2414, § 5, effective January 1, 2021.

Cross references: For the short title ("Equal Pay for Equal Work Act") and the legislative declaration in SB 19-085, see sections 1 and 2 of chapter 247, Session Laws of Colorado 2019.

8-5-104. Employer liability - awards.

    1. An employer who violates section 8-5-102 (1) is liable for economic damages in an amount equal to the difference between the amount that the employer paid to the complaining employee and the amount that the employee would have received had there been no violation plus liquidated damages in an amount equal to the employee's economic damages, except as provided in subsection (1)(b) of this section.
      1. If the employer demonstrates that the act or omission giving rise to the violation was in good faith and that the employer has reasonable grounds for believing that the employer did not violate section 8-5-102 (1), the court shall not award liquidated damages.
      2. In determining whether the employer's violation was in good faith, the fact finder may consider evidence that within two years prior to the date of the commencement of a civil action pursuant to section 8-5-103, the employer completed a thorough and comprehensive pay audit of its workforce, with the specific goal of identifying and remedying unlawful pay disparities.
  2. An employer who violates any provision of section 8-5-102 is liable for:
    1. Legal and equitable relief, which may include employment, reinstatement, promotion, pay increase, payment of lost wage rates, and liquidated damages; and
    2. The employee's reasonable costs, including attorney fees.
  3. Nothing in this section precludes an employee from asserting any other available statutory or common-law claims.

Source: L. 55: p. 504, § 4. CRS 53: § 80-23-4. C.R.S. 1963: § 80-3-4. L. 69: p. 594, § 70. L. 2019: Entire section amended, (SB 19-085), ch. 247, p. 2415, § 6, effective January 1, 2021.

Cross references: For the short title ("Equal Pay for Equal Work Act") and the legislative declaration in SB 19-085, see sections 1 and 2 of chapter 247, Session Laws of Colorado 2019.

8-5-105. Records open to inspection - repeal. (Repealed)

Source: L. 55: p. 504, § 5. CRS 53: § 80-23-5. C.R.S. 1963: § 80-3-5. L. 69: p. 594, § 71. L. 2019: (2) added by revision, (SB 19-085), ch. 247, pp. 2415, 2417, §§ 7, 9.

Editor's note: Subsection (2) provided for the repeal of this section, effective January 1, 2021. (See L. 2019, pp. 2415, 2417.)

8-5-106. Colorado pay equity commission - creation - duties - cash fund - report - repeal. (Repealed)

Source: L. 2010: Entire section added, (HB 10-1417), ch. 266, p. 1217, § 1, effective May 25.

Editor's note: Subsection (6) provided for the repeal of this section, effective July 1, 2015. (See L. 2010, p. 1217.)

PART 2 TRANSPARENCY IN PAY AND OPPORTUNITIES FOR PROMOTION AND ADVANCEMENT

Cross references: For the short title ("Equal Pay for Equal Work Act") and the legislative declaration in SB 19-085, see sections 1 and 2 of chapter 247, Session Laws of Colorado 2019.

8-5-201. Employment opportunities - opportunities for promotion or advancement - pay rates in job listings.

  1. An employer shall make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.
  2. An employer shall disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant.

Source: L. 2019: Entire part added, (SB 19-085), ch. 247, p. 2416, § 8, effective January 1, 2021.

8-5-202. Record keeping.

An employer shall keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.

Source: L. 2019: Entire part added, (SB 19-085), ch. 247, p. 2416, § 8, effective January 1, 2021.

8-5-203. Enforcement - rules.

  1. The director has the power to administer, carry out, and enforce all of the provisions of this part 2 and may promulgate rules for that purpose. The director shall provide written copies of rules promulgated pursuant to this section to all employees and employers upon written request.
    1. A person who claims to be aggrieved by a violation of section 8-5-201 or 8-5-202 may file a written complaint with the director within one year after the date that the person learned of the violation. The written complaint must state the name and address of the employer and a detailed account of the alleged violation.
    2. An employer's failure to comply with section 8-5-201 (1) for one promotional opportunity is considered one violation.
    3. An employer's failure to comply with section 8-5-201 (2) for one job opening is considered one violation regardless of the number of postings that list the job opening.
  3. The director shall investigate complaints of violations of this part 2 and shall promulgate rules necessary to govern the investigations.
  4. Upon finding that an employer has violated this part 2, the director may order the employer to pay a fine of no less than five hundred dollars and no more than ten thousand dollars per violation.
  5. If an employee bringing suit for a violation of section 8-5-102 demonstrates a violation of this part 2, and the court finds a violation of this part 2, the court may order appropriate relief, including a rebuttable presumption that records not kept by the employer in violation of section 8-5-202 contained information favorable to the employee's claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith.

Source: L. 2019: Entire part added, (SB 19-085), ch. 247, p. 2416, § 8, effective January 1, 2021.

ARTICLE 6 MINIMUM WAGES OF WORKERS

Law reviews: For article, "An Overview of Federal and State Wage-Hour Laws -- Part I", which discusses the federal wage-hour laws, see 14 C olo. Law. 384 (1985).

Section

8-6-101. Legislative declaration - minimum wage of workers - authority of a local government to enact minimum wage laws - enforcement - report - severability - definition.

  1. The welfare of the state of Colorado demands that workers be protected from conditions of labor that have a pernicious effect on their health and morals, and it is therefore declared, in the exercise of the police and sovereign power of the state of Colorado, that inadequate wages and unsanitary conditions of labor exert such pernicious effect.
  2. Repealed.
      1. Notwithstanding any other provision of law, a local government may enact through its governing body or, when available, through its initiative or referendum powers, a law establishing minimum wages for individuals performing, or expected to perform, four or more hours of work for an employer in any given week within the geographic boundaries of the local government's jurisdiction. Minimum wages established in accordance with this section may exceed the statewide minimum wage established in accordance with section 15 of article XVIII of the state constitution, any other minimum wage established by state law, or any minimum wage established by federal law; except that a local government that enacts a minimum wage in accordance with this subsection (3) shall provide a tip offset for employees of any business or enterprise that prepares and offers for sale food or beverages for consumption either on or off the premises equal to the tip offset provided in section 15 of article XVIII of the state constitution. The tip offset applies only to employees who regularly receive tips and only when a tip offset is permitted by state law. A local government shall not include in its minimum wage law time spent in the local government's jurisdiction by an employee solely for the purpose of traveling through the local government's jurisdiction from a point of origin outside of the local government's boundaries to a destination outside of the local government's boundaries, with no employment-related or commercial stops in the local government's jurisdiction, except for refueling or the employee's personal meals or errands. (3) (a) (I) Notwithstanding any other provision of law, a local government may enact through its governing body or, when available, through its initiative or referendum powers, a law establishing minimum wages for individuals performing, or expected to perform, four or more hours of work for an employer in any given week within the geographic boundaries of the local government's jurisdiction. Minimum wages established in accordance with this section may exceed the statewide minimum wage established in accordance with section 15 of article XVIII of the state constitution, any other minimum wage established by state law, or any minimum wage established by federal law; except that a local government that enacts a minimum wage in accordance with this subsection (3) shall provide a tip offset for employees of any business or enterprise that prepares and offers for sale food or beverages for consumption either on or off the premises equal to the tip offset provided in section 15 of article XVIII of the state constitution. The tip offset applies only to employees who regularly receive tips and only when a tip offset is permitted by state law. A local government shall not include in its minimum wage law time spent in the local government's jurisdiction by an employee solely for the purpose of traveling through the local government's jurisdiction from a point of origin outside of the local government's boundaries to a destination outside of the local government's boundaries, with no employment-related or commercial stops in the local government's jurisdiction, except for refueling or the employee's personal meals or errands.
      2. All adult employees and emancipated minors, whether employed on an hourly, piecework, commission, time, task, or other basis, shall be paid not less than the minimum wage enacted by the local government through its governing body or through initiative or referendum powers.
    2. A local government that enacts a minimum wage law in accordance with this subsection (3) may adopt provisions for the local enforcement of the law, including:
      1. A private right of action to enforce the requirement in a court of competent jurisdiction;
      2. At levels that may exceed those set by state law:
        1. Fines and penalties;
        2. Payment of unpaid wages or unpaid overtime based on those wages;
        3. Liquidated damages;
        4. Interest;
        5. Costs and attorney fees payable to any affected prevailing employee; and
        6. Costs and attorney fees payable to the local government or its designated enforcement departments;
      3. Procedures for the local government to order any appropriate or equitable relief; and
      4. Other provisions necessary for the efficient and cost-effective enforcement of a local minimum wage law.
      1. Except as provided in subsection (3)(c)(II) of this section, a local minimum wage adopted by a county is only enforceable within the unincorporated portion of the county.
      2. One or more contiguous counties and any municipality within each county may enter into intergovernmental agreements to establish a local minimum wage law within the unincorporated portion of each county and within each municipality. An intergovernmental agreement entered into in accordance with this subsection (3)(c) must establish the manner in which a local government minimum wage law will be enforced and administered.
    4. Before enacting a minimum wage law, a local government shall consult with surrounding local governments and engage stakeholders, including chambers of commerce, small and large businesses, businesses that employ tipped workers, workers, labor unions, and community groups.
  4. For purposes of this section, "local government" means a:
    1. City;
    2. Home rule city;
    3. Town;
    4. Territorial charter city;
    5. City and county;
    6. County; or
    7. Home rule county.
  5. If any provision of this section is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of this section are valid, unless it appears to the court that the valid provisions of this section are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
  6. A local government that enacts a local minimum wage law pursuant to this section must specify that an increase in the local minimum wage must take effect on the same date as a scheduled increase to the statewide minimum wage required under section 15 of article XVIII of the state constitution.
  7. If a local government enacts a local minimum wage law requiring a minimum wage that exceeds the statewide minimum wage, the local government may only increase the local minimum wage each year by up to one dollar and seventy-five cents or fifteen percent, whichever is higher, until the local minimum wage reaches the amount enacted by the local government.
    1. By July 1, 2021, the executive director of the department of labor and employment shall issue a written report regarding local minimum wage laws in the state. The report must include the location, nature, and scope of enacted local minimum wage laws. To the extent feasible, the executive director shall also include in the report economic data, including jobs, earnings, and sales tax revenue, in the jurisdiction of any local government that has enacted a local minimum wage law pursuant to this section, as well as data for neighboring jurisdictions, relevant regions, and the state. The report may include recommendations for possible improvements to this section.
    2. The executive director shall update the report by July 1 each year thereafter if an additional local government enacts a minimum wage law after July 1 of the year prior.
      1. The executive director shall submit the report required in this subsection (8) to the senate local government committee and the house of representatives transportation and local government committee, or their successor committees.
      2. Notwithstanding section 24-1-136 (11)(a)(I), the report required in this subsection (8) continues indefinitely.
    1. The executive director of the department of labor and employment shall notify the executive director of the department of health care policy and financing if a local government enacts a minimum wage that exceeds the statewide minimum wage.
    2. If the executive director of the department of health care policy and financing receives notice pursuant to subsection (9)(a) of this section, the executive director shall, as soon as practicable, submit a report to the joint budget committee with recommendations about whether provider rates, with the exception of rates for an eligible nursing facility provider as defined in section 25.5-6-201 (15.5), need to be increased to accommodate the local government's minimum wage increase and if establishing a fund to pass through those increases to facilities in the jurisdiction of the local government that has raised the minimum wage is necessary.
    3. Notwithstanding section 24-1-136 (11)(a)(I), the report required in this subsection (9) continues indefinitely.
    1. If at any point ten percent of local governments in the state have enacted a local minimum wage law pursuant to this section, a local government that has not previously enacted a local minimum wage law shall not enact a local minimum wage law pursuant to this section until the general assembly has amended this section to authorize additional local governments to enact local minimum wage laws. A local government that enacted a local minimum wage law prior to the point at which ten percent of local governments have enacted a local minimum wage law may continue to amend that law.
    2. For purposes of determining whether ten percent of local governments in the state have enacted a local minimum wage law pursuant to this section, when a county enacts a local minimum wage law, if a local minimum wage law is enacted by any local government located within that county, only the county's minimum wage law counts toward the calculation of the ten percent. If local governments enter into an intergovernmental agreement on the enforcement or administration of local minimum wage policies, that will only be counted as one local minimum wage for determining the calculation of the ten percent.

Source: L. 17: p. 380, § 1. C.L. § 4262. CSA: C. 97, § 236. CRS 53: § 80-9-1. C.R.S. 1963: § 80-7-1. L. 77: Entire section amended, p. 428, § 2, effective July 1. L. 99: Entire section amended, p. 289, § 2, effective April 14. L. 2019: (2) repealed, (3) amended, and (4) to (10) added, (HB 19-1210), ch. 320, p. 2972, § 4, effective January 1, 2020.

Cross references: For the legislative declaration in HB 19-1210, see section 1 of chapter 320, Session Laws of Colorado 2019.

ANNOTATION

Law reviews. For note, "Colorado Wage and Hour Law: Analysis and Some Suggestions", see 36 U. Colo. L. Rev. 223 (1964). For article, "The Migrant Farm Worker in Colorado -- The Life and the Law", see 40 U. Colo. L. Rev. 45 (1967).

This article, as a prerequisite to its operation, contemplates the relationship of employer and employee, and where that relationship does not exist, a minimum wage order is null and void. Indus. Comm'n v. Am. Beauty Coll., Inc., 167 Colo. 269, 447 P.2d 531 (1968).

The wage claim act applies only to workers in the state. Worker who did not work in and is not a resident of the state has no standing to assert a claim under the act. Abdulina v. Eberl's Temp. Servs., 79 F. Supp. 3d 1201 (D. Colo. 2015).

8-6-101.5. Minimum wage for agricultural workers - rest periods - overwork protections - definition.

    1. On and after January 1, 2022, except as provided in subsection (1)(b) of this section, the minimum wage requirements of section 15 of article XVIII of the state constitution, and any minimum wage laws enacted pursuant to this article 6, apply to agricultural employers employing agricultural workers.
    2. The Colorado minimum wage that an agricultural employer must pay to an agricultural worker who is principally engaged in the range production of livestock, as described in 29 CFR 780.323 to 29 CFR 780.329, on the open range is:
      1. Beginning January 1, 2022, and through December 31, 2022, five hundred fifteen dollars per week; and
      2. Beginning January 1, 2023, the minimum wage required in the prior calendar year adjusted annually as measured by the United States department of labor's bureau of labor statistics consumer price index for Denver-Aurora-Lakewood or its predecessor or successor index. The director may set a higher minimum wage than is required in this subsection (1)(b)(II) consistent with the director's authority and duties, including under this article 6.
    1. An agricultural worker is entitled to an uninterrupted and duty-free meal period of at least a thirty-minute duration when the agricultural worker's shift exceeds five consecutive hours. The meal periods, to the extent practicable, must be at least one hour after the start, and one hour before the end, of the shift. An agricultural worker must be relieved of all duties and permitted to pursue personal activities for a period to qualify as nonwork, uncompensated time. If the nature of the business activities or other circumstances makes the uninterrupted meal period impractical, the agricultural employee must be permitted to consume an on-duty meal while performing duties. An agricultural employee must be permitted to fully consume a meal of choice while working and be fully compensated for the on-duty meal period without any loss of time or compensation.
    2. An agricultural worker is entitled to an uninterrupted and duty-free rest period of at least ten minutes within each four hours of work.
    3. This subsection (2) does not apply to a truck driver whose sole and principal duty is to haul livestock or to a combine or harvester operator while harvesting.
  3. As used in this section, "agricultural worker" has the meaning set forth in section 8-13.5-201 (3).

Source: L. 2021: Entire section added, (SB 21-087), ch. 337, p. 2176, § 3, effective June 25.

8-6-102. Construction.

Whenever this article or any part thereof is interpreted by any court, it shall be liberally construed by such court.

Source: L. 17: p. 389, § 22. C.L. § 4282. CSA: C. 97, § 256. CRS 53: § 80-9-20. C.R.S. 1963: § 80-7-20.

8-6-103. Definitions.

As used in this article, unless the context otherwise requires:

  2. Repealed.
  3. "Director" means the director of the division of labor standards and statistics.
  4. "Division" means the division of labor standards and statistics in the department of labor and employment.
  5. "Minor" means any person of either sex under the age of eighteen years.
  6. "Occupation" means every vocation, trade, pursuit, and industry.
  7. Repealed.

Source: L. 17: pp. 380, 382, §§ 2, 5, 7. C.L. §§ 4263, 4266, 4268. CSA: C. 97, §§ 237, 240, 242. CRS 53: §§ 80-9-2, 80-9-4, 80-9-6. C.R.S. 1963: §§ 80-7-2, 80-7-4, 80-7-6. L. 69: pp. 604, 605, §§ 86, 87, 89. L. 77: (7) repealed, p. 432, § 13, effective July 1. L. 86: (1) and (2) repealed, p. 502, § 125, effective July 1. L. 2016: (3) and (4) amended, (HB 16-1323), ch. 131, p. 378, § 12, effective August 10.

Cross references: For the division of labor and the director of the division of labor and their powers and duties, see article 1 of this title.

8-6-104. Wages shall be adequate - conditions healthful and moral.

It is unlawful to employ workers in any occupation within the state of Colorado for wages which are inadequate to supply the necessary cost of living and to maintain the health of the workers so employed. It is unlawful to employ workers in any occupation within this state under conditions of labor detrimental to their health or morals.

Source: L. 17: p. 381, § 4. C.L. § 4265. CSA: C. 97, § 239. CRS 53: § 80-9-3. C.R.S. 1963: § 80-7-3. L. 77: Entire section amended, p. 428, § 3, effective July 1.

Cross references: For the payment of wages generally, see article 4 of this title 8; for wage equality, see article 5 of this title 8; for the "Colorado Youth Employment Opportunity Act of 1971", see article 12 of this title 8; for the eight-hour workday requirement, see article 13 of this title 8; for the general protection of building employees, see article 14 of this title 8.

ANNOTATION

Not exception to rule of employment at will. Statutory pronouncement that makes it unlawful to "employ workers in any occupation within this state under conditions of labor detrimental to their health or morals" is a broad, general statement of policy that is inadequate to justify adoption of an exception to the rule that an indefinite general hiring is terminable at will by either party to the employment. Corbin v. Sinclair Marketing, Inc., 684 P.2d 265 (Colo. App. 1984).

8-6-105. Director to investigate.

It is the duty of the director to inquire into the wages paid to employees and into the conditions of labor surrounding said employees in any occupation in this state if the director has reason to believe that said conditions of labor are detrimental to the health or morals of said employees or that the wages paid to a substantial number of employees are inadequate to supply the necessary cost of living and to maintain such employees in health. At the request of not less than twenty-five persons engaged in any occupation, the director shall forthwith make such investigation as is provided in this article. Such investigation may be made at any time, upon the initiative of the director.

Source: L. 17: p. 381, § 5. C.L. § 4266. CSA: C. 97, § 240. CRS 53: § 80-9-4. C.R.S. 1963: § 80-7-4. L. 69: p. 604, § 87. L. 77: Entire section amended, p. 429, § 4, effective July 1.

8-6-106. Determination of minimum wage and conditions.

The director shall determine the minimum wages sufficient for living wages for persons of ordinary ability, including minimum wages sufficient for living wages, whether paid according to time rate or piece rate; the minimum wages sufficient for living wages for learners and apprentices; standards of conditions of labor and hours of employment not detrimental to health or morals for workers; and what are unreasonably long hours. In all such determinations, the director shall be bound by the provisions of this article and of section 15 of article XVIII of the state constitution; except that, if a higher minimum wage rate is established by applicable federal law or rules, the director shall be bound by such federal law or rules.

Source: L. 17: p. 382, § 6. C.L. § 4267. CSA: C. 97, § 241. CRS 53: § 80-9-5. C.R.S. 1963: § 80-7-5. L. 69: p. 604, § 88. L. 77: Entire section amended, p. 429, § 5, effective July 1. L. 2007: Entire section amended, p. 46, § 1, effective March 14.

8-6-107. Powers of director - duty of employer.

  1. The director, for the purposes of this article, has power to investigate and ascertain the conditions of labor and the wages in the different occupations, whether paid by time rate or piece rate, in the state of Colorado. The director has power, in person or through any authorized representative, to inspect and examine and make excerpts from any books, reports, contracts, payrolls, documents, papers, and other records of any employer that in any way pertain to the question of wages and to require from any such employer full and true statements of the wages paid.
  2. Every employer shall keep a register of the names, ages, dates of employment, and residence addresses of all employees. It is the duty of every such employer, whether a person, firm, or corporation, to furnish to the director, upon request, any reports or information which the director may require to carry out the purposes of this article, such reports and information to be verified by the oath of the person, or a member of the firm or the president, secretary, or manager of the corporation, furnishing the same if and when so requested by the director; and the director or any authorized representative shall be allowed free access to the place of business of such employer for the purpose of making any investigation authorized by this article.

Source: L. 17: p. 382, § 7. C.L. § 4268. CSA: C. 97, § 242. CRS 53: § 80-9-6. C.R.S. 1963: § 80-7-6. L. 69: p. 605, § 89. L. 77: Entire section amended, p. 429, § 6, effective July 1.

8-6-108. Public hearings - witness fees - contempt - director to make rules.

  1. The director may hold public hearings at such times and places as he deems proper for the purpose of investigating any of the matters he is authorized to investigate by this article at which hearings employers, employees, or other interested persons may appear and give testimony as to the matter under consideration. The director has the power to subpoena and compel the attendance of any witness and to administer oaths, also, by subpoena, to compel the production of any books, papers, or other evidence at any public hearing of the director or at any session of any wage board. All witnesses subpoenaed by said director shall be paid the same mileage and per diem as are allowed by law to witnesses in civil cases before the district court of the state of Colorado. If any person fails to attend as a witness or to bring with him any books, papers, or other evidence when subpoenaed by the director or refuses to testify when ordered so to do, the director may apply to any district court in this state to compel obedience on the part of such person. The district court shall thereupon compel obedience by proceedings for contempt as in cases of disobedience of any order of said court in a proceeding pending before said court. The director shall not be bound by the technical rules of evidence. Said director may hold meetings for the transaction of any of his business at such times and places as he prescribes.
  2. The director has power to make reasonable and proper rules and procedure and to enforce said rules and procedure.

Source: L. 17: p. 383, § 8. C.L. § 4269. CSA: C. 97, § 243. CRS 53: § 80-9-7. C.R.S. 1963: § 80-7-7. L. 64: p. 288, § 218. L. 69: p. 605, § 90. L. 73: p. 1409, § 60. L. 86: (2) amended, p. 472, § 32, effective July 1.

Cross references. For witness and mileage fees, see §§ 13-33-102 and 13-33-103; for proceedings for contempt, see C.R.C.P. 107.

8-6-108.5. Minimum wage - rules.

  1. Effective July 1, 1977, the minimum wage for minors may be fifteen percent below the minimum wage for other workers; except that the full minimum wage shall be paid to any emancipated minor. An emancipated minor shall mean any individual less than eighteen years of age who:
    1. Has the sole or primary responsibility for his own support;
    2. Is married and living away from parents or guardian;
    3. Is able to show that his well-being is substantially dependent upon being gainfully employed.
  2. Repealed.
  3. The director may issue only such rules as are necessary to carry out the provisions of this article and as are consistent with the purposes and intent of section 8-6-101 and section 15 of article XVIII of the state constitution; except that, if a higher minimum wage rate is established by applicable federal law or rules, the director's rules shall be consistent with such federal law or rules.

Source: L. 77: Entire section added, p. 430, § 7, effective July 1. L. 93: (2) amended, p. 1630, § 3, effective July 1. L. 2007: (3) amended, p. 46, § 2, effective March 14. L. 2021: (2) repealed, (SB 21-039), ch. 380, p. 2543, § 1, effective July 1.

8-6-108.7. Elimination of subminimum wage for individuals with disabilities - legislative declaration - definitions - repeal.

  1. The general assembly finds and declares that:
    1. Colorado is an employment first state committed to the goal of achieving competitive integrated employment for individuals with disabilities;
    2. Ensuring that individuals with disabilities have the opportunity to pursue employment paid in an amount equal to minimum wage or higher is a critical element of achieving this goal;
    3. Due to systemic barriers, many individuals with disabilities are paid less than the minimum wage applicable to other employees and have limited opportunities to pursue competitive integrated employment;
    4. The payment of subminimum wages is an economic justice issue for individuals with disabilities, impacting their ability to earn wages equal to their peers without disabilities and devaluing their contributions based on their disabilities;
    5. Service enhancements and public policy changes are needed to address these systemic barriers and assist individuals in subminimum wage jobs to pursue competitive integrated employment; and
    6. The elimination of subminimum wage employment, along with the implementation of critical service enhancements and policy changes, is essential to promoting economic justice for, and the enhanced self-sufficiency of, individuals with disabilities while ensuring that individuals currently working in subminimum wage jobs can successfully transition to competitive integrated employment, supported employment, or integrated community activities related to each individual's employment goals.
    1. On and after July 1, 2021, if an employer does not hold a special certificate issued on or before June 30, 2021, the employer shall not pay an employee at a wage rate that is below the highest applicable minimum wage.
    2. On and after July 1, 2021, an employer shall not hire any new employees at a wage rate that is below the highest applicable minimum wage.
      1. An employer that holds a special certificate issued on or before June 30, 2021, shall, on or before July 1, 2021, submit data for individuals currently employed in subminimum wage jobs to the department of health care policy and financing in a manner determined by the department of health care policy and financing and shall include:
        1. The number of individuals currently employed in subminimum wage jobs by the employer;
        2. The number of hours per week worked by each individual employed in subminimum wage jobs; and
        3. The wages per hour or piece rate earned by each individual employed in subminimum wage jobs.
      2. The department of health care policy and financing shall compile and summarize the data submitted pursuant to subsection (2)(c)(I) of this section and make the summary available to the public on or before June 30, 2022.
      3. On or before June 30, 2022, each employer that holds a special certificate issued on or before June 30, 2021, shall submit a transition plan to the department of health care policy and financing detailing how the employer plans to phase out subminimum wage employment by July 1, 2025, and support individuals currently in subminimum wage jobs to pursue competitive integrated employment, supported employment, or integrated community activities related to each individual's employment goals.
      4. The transition plan must include measurable benchmarks, be informed by evidence-based practices and effective employment models, and be updated and resubmitted to the department of health care policy and financing annually until the employer is no longer paying subminimum wages. The transition plan must be aligned with the employer's efforts to comply with federal home- and community-based services regulations, if applicable, and honor the personal choice of individuals currently working in subminimum wage jobs as identified through the person-centered career development planning process described in section 8-84-301 (2). The transition plan and each annual update must include the data outlined in subsection (2)(c)(I) of this section updated as of the date of submission and the data collected pursuant to this subsection (2)(c)(IV). The department of health care policy and financing shall compile and summarize the data and make the summary available to the public on an annual basis in compliance with federal and state privacy laws including the federal "Health Insurance Portability and Accountability Act of 1996", as amended, 42 U.S.C. sec. 1320d to 1320d-9. The transition plan and each annual update must include:
        1. The number of individuals who, since the most recent prior submission of data, have moved to another provider agency not affiliated with the employer;
        2. The number of individuals who, since the most recent prior submission of data, have transitioned to competitive integrated employment as defined in section 8-84-301 (3);
        3. The number of individuals who, since the most recent prior submission of data, have transitioned to supported employment that does not meet the definition of competitive integrated employment;
        4. The number of individuals who, since the most recent prior submission of data, have transitioned to integrated community activities related to the individual's employment goals, including individualized career exploration activities;
        5. The number of individuals who, since the most recent prior submission of data, have transitioned to non-employment-related day services; and
        6. For individuals included in subsections (2)(c)(IV)(B) and (2)(c)(IV)(C) of this section, the number of hours per week worked by each individual and the wages per hour earned by each individual.
      5. The department of health care policy and financing shall collaborate with employers and other interested stakeholders to create a process for approving transition plans. The process for approving transition plans must ensure that an employer has until July 1, 2025, to eliminate subminimum wage employment so that individuals currently working in subminimum wage jobs can successfully transition to competitive integrated employment, supported employment, or integrated community activities related to each individual's employment goals.
      6. Each annual update of the transition plan must demonstrate progress toward its identified benchmarks. The department of health care policy and financing shall assess each employer's annual progress and provide technical assistance as needed. If an employer fails to demonstrate progress toward the benchmarks identified in its transition plan, the department of health care policy and financing shall notify the department of labor and employment which may issue a compliance order to the employer.
      7. In order to ensure that individuals currently working in subminimum wage jobs may successfully transition to competitive integrated employment, supported employment, or integrated community activities related to each individual's employment goals, the individual's case manager must offer the individual the opportunity to have an advocate identified and selected by the individual present during the individual's service plan meetings where employment services are discussed. The case manager must offer and provide assistance, if requested, in identifying an independent advocate who is not involved with providing services or supports to the individual. The case manager shall document the offers of assistance and the individual's responses.
    4. This subsection (2) is repealed, effective July 1, 2025.
  3. On and after July 1, 2025, an employer shall not pay an employee with a disability less than the highest applicable minimum wage regardless of whether the employer was issued a special certificate.
  4. As used in this section:
    1. "Competitive integrated employment" has the same meaning as set forth in section 8-84-301 (3).
    2. "Department" means the department of labor and employment.
    3. "Special certificate" means a special certificate issued by the United States department of labor pursuant to section 214 (c) of the federal "Fair Labor Standards Act of 1938", as amended, 29 U.S.C. sec. 201 et seq., to an employer that authorizes the employer to pay wages that are less than the minimum wage otherwise required by law to employees whose earning or productive capacity is impaired by age, physical or mental disability, or injury.

Source: L. 2021: Entire section added, (SB 21-039), ch. 380, p. 2543, § 2, effective July 1.

8-6-109. Methods of establishing minimum wages - wage board.

  1. If after investigation the director is of the opinion that the conditions of employment surrounding said employees are detrimental to the health or morals or that a substantial number of workers in any occupation are receiving wages, whether by time rate or piece rate, inadequate to supply the necessary costs of living and to maintain the workers in health, the director shall proceed to establish minimum wage rates either directly or by the indirect method described in subsection (2) of this section. If he selects the direct method, the director shall establish the minimum wage rates.
  2. If he adopts the indirect method, the director shall establish a wage board consisting of not more than three representatives of employers in the occupation in question, and of an equal number of persons to represent the employees in said occupation, and of an equal number of disinterested persons to represent the public, and someone representing the director if it is desired. The director shall name and appoint all members of the wage board and designate the chairman thereof. The selection of members representing employers and employees shall be, so far as practicable, through election by employers and employees respectively, subject to approval and selection by the director. The members of the wage board shall be compensated at the same rate and fees for service as jurors in courts of record, and they shall be allowed their necessary traveling and clerical expenses incurred in the actual performance of their duties, to be paid from the appropriations for the expenses of the division.
  3. The proceedings and deliberations of such wage board shall be made a matter of record for the use of the director and shall be admissible as evidence in any proceedings before the director. Each wage board has the same power as the director to subpoena witnesses, administer oaths, and compel the production of books, papers, and other evidence. Witnesses subpoenaed by a wage board shall be allowed the same compensation as when subpoenaed by the director.

Source: L. 17: p. 384, § 9. C.L. § 4270. CSA: C. 97, § 244. CRS 53: § 80-9-8. C.R.S. 1963: § 80-7-8. L. 69: p. 606, § 91. L. 77: (1) an (2) amended, p. 430, § 8, effective July 1.

Cross references: For juror's fees, see § 13-33-101; for mileage fees of jurors, see § 13-33-103.

ANNOTATION

Pursuant to Colorado's Minimum Wage Act, the director of the Colorado division of labor has been delegated the authority to investigate and determine the wages and employment conditions in certain occupations. If, following such investigation, the director finds that employment conditions in any industry endanger employees' health or morals, the director may directly or through a "wage board" adopt a wage order to establish minimum wage rates and standard conditions of employment in the affected industry. Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

8-6-110. Wage board - duties - report - quorum.

The director may transmit to each wage board all pertinent information in his possession relative to the wages paid or material to the subject of inquiry of the occupation in question. Each wage board shall endeavor to determine, if requested so to do by the director, the standard conditions of employment; the minimum wage, whether by time rate or piece rate, adequate to maintain in health and to supply with the necessary cost of living an employee of ordinary ability in the occupation in question, or in any branches thereof; and suitable minimum wages, graded, so far as practicable, on a rising scale toward the minimum allowed experienced workers, for learners and apprentices. When a majority of the members of a wage board agree upon standard conditions of employment or minimum wage board determinations, they shall report such determinations to the director, together with the reasons therefor and the facts relating thereto. A majority of the members of any such wage board shall constitute a quorum.

Source: L. 17: p. 385, § 10. C.L. § 4271. CSA: C. 97, § 245. CRS 53: § 80-9-9. C.R.S. 1963: § 80-7-9. L. 69: p. 606, § 92. L. 77: Entire section amended, p. 430, § 9, effective July 1.

ANNOTATION

Pursuant to Colorado's Minimum Wage Act, the director of the Colorado division of labor has been delegated the authority to investigate and determine the wages and employment conditions in certain occupations. If, following such investigation, the director finds that employment conditions in any industry endanger employees' health or morals, the director may directly or through a "wage board" adopt a wage order to establish minimum wage rates and standard conditions of employment in the affected industry. Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

8-6-111. Director to review report.

  1. Upon the receipt of a report from a wage board, the director shall review the same and may approve or disapprove any determination or recommit the subject to the same or a new wage board. If the director approves any of the determinations of the wage board, said director shall publish notice not less than once a week for two successive weeks in a newspaper of general circulation published in the county in which any business directly affected thereby is located, that he will, on a date and at a place named in said notice, hold a public meeting, at which all persons in favor of or opposed to said recommendations will be given a hearing.
  2. After publication of notice and the meeting, the director, if so desired, may make and render such an order as may be proper or necessary to adopt the recommendations and carry the same into effect and require all employees in the occupation directly affected thereby to preserve and comply with such recommendations and order. Such order is effective thirty days after it is made and rendered and shall be in full force and effect on and after that day. After the order is effective, it is unlawful for any employer to violate or disregard any of the terms of the order or to employ any worker in any occupation covered by the order at lower wages or under other conditions than authorized or permitted by the order. The director shall, as far as is practicable, mail a copy of any such order to every employer affected thereby; and every employer affected by the order shall keep a copy thereof posted in a conspicuous place in such employer's establishment. Such order shall include a notice of the contents of sections 8-12-105 (3), 8-12-115 (4)(b)(II), and 8-12-116 (2).
  3. In case of an emergency the director may authorize or permit the employment of any person for more hours per day or per week than the maximum now fixed by law.
  4. Overtime, at a rate of one and one-half times the regular rate of pay, may be permitted by the director under conditions and rules and for increased minimum wages which the director, after investigation, determines and prescribes by order and which shall apply equally to all employers in such industry or occupation.

Source: L. 17: p. 386, § 11. C.L. § 4272. CSA: C. 97, § 246. CRS 53: § 80-9-10. C.R.S. 1963: § 80-7-10. L. 69: p. 607, § 93. L. 77: (2), (3), and (4) amended, p. 431, § 10, effective July 1. L. 86: (4) amended, p. 472, § 33, effective July 1. L. 2000: (2) amended, p. 1487, § 2, effective July 1.

Cross references: For the maximum number of hours minors may be employed, see § 8-12-105; for the general eight-hour day requirement, see article 13 of this title.

ANNOTATION

Pursuant to Colorado's Minimum Wage Act, the director of the Colorado division of labor has been delegated the authority to investigate and determine the wages and employment conditions in certain occupations. If, following such investigation, the director finds that employment conditions in any industry endanger employees' health or morals, the director may directly or through a "wage board" adopt a wage order to establish minimum wage rates and standard conditions of employment in the affected industry. Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

Companions employed by third-party employers--as opposed to by households or family members--fall within the companionship exemption of the Colorado minimum wage order, promulgated under subsection (4). As a result, companions employed by third-party employers are not entitled to overtime wages under Colorado law. Jordan v. Maxim Healthcare Servs., 950 F.3d 724 (10th Cir. 2020).

8-6-112. New determination of wages and conditions.

Whenever a minimum wage rate or a new standard of conditions of employment has been established in any occupation, the director, if he deems proper or necessary so to do, upon petition of either employers or employees, may reconvene the wage board or establish a new wage board, and any recommendation made by such board shall be dealt with in the same manner as the original recommendation of a wage board. Pending any new determination, any minimum wage rate and any new standard of conditions of employment theretofore established shall be and continue in force and effect. It is the duty of the director to survey and review for adequacy established wage orders made pursuant to the provisions of section 8-6-111 at least every four years, whether or not the director is petitioned to do so by either employers or employees.

Source: L. 17: p. 387, § 12. C.L. § 4273. CSA: C. 97, § 247. CRS 53: § 80-9-11. C.R.S. 1963: § 80-7-11. L. 69: pp. 607, 665, §§ 94, 1.

ANNOTATION

Pursuant to Colorado's Minimum Wage Act, the director of the Colorado division of labor has been delegated the authority to investigate and determine the wages and employment conditions in certain occupations. If, following such investigation, the director finds that employment conditions in any industry endanger employees' health or morals, the director may directly or through a "wage board" adopt a wage order to establish minimum wage rates and standard conditions of employment in the affected industry. Weissman v. Crawford Rehab. Servs., 914 P.2d 380 (Colo. App. 1995).

8-6-113. Employment at less than minimum wage - license. (Repealed)

Source: L. 17: p. 387, § 13. C.L. § 4274. CSA: C. 97, § 248. CRS 53: § 80-9-12. C.R.S. 1963: § 80-7-12. L. 69: p. 608, § 95. L. 77: Entire section repealed, p. 432, § 13, effective July 1.

8-6-114. Wages and working conditions for minors. (Repealed)

Source: L. 17: p. 387, § 14. C.L. § 4275. CSA: C. 97, § 247. CRS 53: § 80-9-13. C.R.S. 1963: § 80-7-13. L. 69: p. 608, § 96. L. 77: Entire section repealed, p. 432, § 13, effective July 1.

8-6-115. Discrimination by employer - penalty - prosecutions.

Any employer who discharges or threatens to discharge, or in any other way discriminates against an employee because such employee serves upon a wage board, or is active in its formation, or has testified or is about to testify, or because the employer believes that the employee may testify in any investigation or proceeding relative to enforcement of this article 6 commits a class 2 misdemeanor. The director shall investigate and report to the proper prosecuting officials whether employers in each occupation investigated are obeying his or her decrees, and the director or employees of the division may cause informations to be filed with and prosecutions to be instituted by the proper prosecuting officials for any violation of the provisions of this article 6.

Source: L. 17: p. 388, § 15. C.L. § 4276. CSA: C. 97, § 250. CRS 53: § 80-9-14. C.R.S. 1963: § 80-7-14. L. 69: p. 608, § 97. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3141, § 89, effective March 1, 2022.

ANNOTATION

Law reviews. For article, "Punitive Damages in Wrongful Discharge C ases", see 15 C olo. Law. 658 (1986).

8-6-116. Violation - penalty.

  1. The minimum wages fixed by the director, as provided in this article 6, are the minimum wages paid to the employees, and the payment to such employees of a wage less than the minimum so fixed is unlawful, and every employer or other person who intentionally, individually or as an officer, agent, or employee of a corporation or other person, pays or causes to be paid to any such employee a wage less than the minimum commits theft as defined in section 18-4-401.
  2. For the purpose of this section, the amount of the theft is the unpaid balance of the full amount of the minimum wage, as described in section 8-6-118.

Source: L. 17: p. 388, § 16. C.L. § 4277. CSA: C. 97, § 251. CRS 53: § 80-9-15. L. 63: p. 290, § 9. C.R.S. 1963: § 80-7-15. L. 69: p. 608, § 98. L. 73: p. 1409, § 61. L. 77: Entire section amended, p. 431, § 11, effective July 1. L. 2019: Entire section amended, (HB 19-1267), ch. 182, p. 2059, § 4, effective January 1, 2020.

Cross references: For the legislative declaration in HB 19-1267, see section 1 of chapter 182, Session Laws of Colorado 2019.

8-6-117. Minimum wage presumed reasonable - conclusiveness.

In every prosecution for the violation of any provision of this article, the minimum wage established by the director shall be prima facie presumed to be reasonable and lawful and the wage required to be paid. The findings of fact made by the director acting within prescribed powers, in the absence of fraud, shall be conclusive.

Source: L. 17: p. 388, § 17. C.L. § 4278. CSA: C. 97, § 252. CRS 53: § 80-9-16. C.R.S. 1963: § 80-7-16. L. 69: p. 609, § 99. L. 77: Entire section amended, p. 432, § 12, effective July 1.

8-6-118. Recovery of balance of minimum wage.

An employee receiving less than the legal minimum wage applicable to such employee is entitled to recover in a civil action the unpaid balance of the full amount of such minimum wage, together with reasonable attorney fees and court costs, notwithstanding any agreement to work for a lesser wage.

Source: L. 17: p. 389, § 18. C.L. § 4279. CSA: C. 97, § 253. CRS 53: § 80-9-17. C.R.S. 1963: § 80-7-17. L. 2014: Entire section amended, (SB 14-005), ch. 276, p. 1120, § 8, effective January 1, 2015.

Cross references: For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

ANNOTATION

An employee-plaintiff may bring a private civil action for violations of the Colorado minimum wage order's meal and rest period regulations. Sobolewski v. Boselli & Sons, LLC, 342 F. Supp. 3d 1178 (D. Colo. 2018).

An employee may maintain a private right of action for the unpaid balance of any minimum wage amounts owed to him or her by reason of the employer's alleged meal and rest break violations. Sobolewski v. Boselli & Sons, LLC, 342 F. Supp. 3d 1178 (D. Colo. 2018).

An employee who does not receive compensated and duty-free rest periods required under the Colorado minimum wage orders is entitled to recover in a civil action the unpaid balance of the full amount of minimum wage for the rest periods. Pilmenstein v. Devereux Cleo Wallace, 2021 COA 59, 492 P.3d 1059.

8-6-119. Investigation of complaints.

Any person may register with the division a complaint that the wages paid to an employee for whom a rate has been established are less than that rate, and the director shall investigate the matter and take all proceedings necessary to enforce the payment of the minimum wage rate.

Source: L. 17: p. 389, § 19. C.L. § 4280. CSA: C. 97, § 254. CRS 53: § 80-9-18. C.R.S. 1963: § 80-7-18. L. 69: p. 609, § 100.

8-6-120. Overtime wages for agricultural workers - rules.

The director shall promulgate rules providing meaningful overtime and maximum hours protections to agricultural employees to be proposed no later than October 31, 2021, and adopted no later than January 31, 2022. In promulgating such rules, the director shall consider the inequity and racist origins of the exclusion of agricultural employees from overtime and maximum hours protections available to other employees, the fundamental right of all employees to overtime and maximum hours standards that protect the health and welfare of employees, and the unique difficulties agricultural employees have obtaining workplace conditions equal to those provided to other employees.

Source: L. 2021: Entire section added, (SB 21-087), ch. 337, p. 2177, § 4, effective June 25.

ARTICLE 7 SALARIES OF EMPLOYEES IN MINING

8-7-101 to 8-7-109. (Repealed)

Source: L. 77: Entire article repealed, p. 292, § 2, effective May 26.

Editor's note: This article was numbered as article 12 of chapter 80, C.R.S. 1963. For amendments to this article prior to its repeal in 1977, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 8 TRUCK SYSTEM ABOLISHED

8-8-101 to 8-8-109. (Repealed)

Source: L. 95: Entire article repealed, p. 194, § 6, effective April 13.

Editor's note: This article was numbered as article 20 of chapter 80, C.R.S. 1963. For amendments to this article prior to its repeal in 1995, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 9 ASSIGNMENT OF WAGES

Cross references: For wage assignments in relation to child support or maintenance, see § 14-14-111.5.

Section

8-9-101. Assignment of wages - requirements.

This article is subject to the provisions of articles 2 and 3 of the "Uniform Consumer Credit Code". No assignment of wages by any employee to any person for the benefit of such employee shall be valid or enforceable. No employer or debtor shall recognize or honor any assignment of wages for any purpose unless it is in writing and for a fixed and definite part of the wages earned or to be earned within thirty days from the date of such assignment. Any assignment which is postdated or dated on any other date than that of its actual execution, shall be void and of no effect for any purpose.

Source: L. 49: p. 231, § 3. CSA: C. 97, § 223(1). CRS 53: § 80-11-1. C.R.S. 1963: § 80-15-1. L. 71: p. 853, § 3.

Cross references: For the "Uniform Consumer Credit Code", see articles 1 to 9 of title 5.

ANNOTATION

Law reviews. For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968).

Assignment of insurance renewal commissions held not to be wages within the meaning of this article. Crepeau v. Renewal Guar. Corp., 29 Colo. App. 23, 478 P.2d 698 (1970).

8-9-102. Copies to be given employer and assignor.

No assignment of wages shall be valid or enforceable unless a copy of the assignment is given or mailed by registered mail to the employer within five days after its execution and a copy of the assignment given to the wage earner making the assignment.

Source: L. 49: p. 232, § 4. CSA: C. 97, § 227(1). CRS 53: § 80-11-2. C.R.S. 1963: § 80-15-2.

8-9-103. When assignment must be recorded.

No assignment of wages not already earned at the time of the assignment and no assignment of any other sum to become due to the assignor shall be valid as against any creditor of the assignor who has not had actual notice of the assignment at the time the same is made unless the same is recorded with the recorder of the county wherein such wages are to be earned or such sums are to become due within five days from date thereof.

Source: L. 49: p. 231, § 1. CSA: C. 97, § 232(1). CRS 53: § 80-11-3. C.R.S. 1963: § 80-15-3.

8-9-104. Joinder of wife or husband in assignment - acknowledgment.

No assignment of wages, except for child support, not already earned at the time of the assignment or any sum to become due the assignor after the date of such assignment shall be valid unless, if the assignor is married and residing with his spouse, such spouse joins in and signs such assignment and such assignment is duly acknowledged before a notary public or some other officer authorized by the laws of Colorado to take acknowledgments.

Source: L. 49: p. 231, § 2. CSA: C. 97, § 233(1). CRS 53: § 80-11-4. C.R.S. 1963: § 80-15-4. L. 81: Entire section amended, p. 909, § 2, effective June 8.

ANNOTATION

Annotator's note. A case decided prior to the earliest source of § 8-9-104 has been included in the annotations to this section.

This section is designed to secure to the wife her rightful share in the fruits of her husband's labor. State v. Elkins, 84 Colo. 409, 270 P. 875 (1928).

Since this provision is for the protection of the home, it would be incongruous to permit a creditor to assume the role of the wife for the purpose of seizing her husband's paycheck. State v. Elkins, 84 Colo. 409, 270 P. 875 (1928).

Where wages are in the wife's hands, thus having reached the haven intended by this section, they are not subject to garnishment. State v. Elkins, 84 Colo. 409, 270 P. 875 (1928).

8-9-105. Burden of proof of validity on assignee.

If any assignment of wages or other sums to be earned or to become due after the date of such assignment is contested by any creditor of the assignor, the burden of proof that the assignment was recorded as provided in section 8-9-103 or that the creditor had actual notice of the assignment at the time garnishee summons was issued and that the assignment was made in accordance with the provisions of this article rests upon the assignee under the assignment.

Source: L. 49: p. 232, § 5. CSA: C. 97, § 234(1). CRS 53: § 80-11-5. C.R.S. 1963: § 80-15-5.

8-9-106. Deductions for union dues.

Nothing in this article shall prevent or prohibit the use of the check-off between employers or employees in the custom or practice of the deduction of union dues by an employer for his employees where such an arrangement has been entered into between the parties.

Source: L. 49: p. 232, § 6. CSA: C. 97, § 235(1). CRS 53: § 80-11-6. C.R.S. 1963: § 80-15-6.

8-9-107. Other authorized deductions.

  1. Nothing contained in this article shall be construed to affect deductions authorized by an employee to be made by an employer for hospital, medical, stock purchases, savings, insurance, charities, credit unions, banks, savings and loans, or any other financial institution or other similar purposes, or for rent, board, and subsistence provided in connection with employment, if the authorization is revocable.
  2. Rent, board, and subsistence deductions as provided in subsection (1) of this section shall not be made a condition of employment.

Source: L. 49: p. 232, § 7. CSA: C. 97, § 235(2). CRS 53: § 80-11-7. C.R.S. 1963: § 80-15-7. L. 71: p. 853, § 3. L. 83: Entire section amended, p. 405, § 1, effective May 23.

ARTICLE 10 PREFERRED CLAIMS

Cross references: For the power of Pinnacol Assurance to recover benefits for civil defense employees, see § 24-33.5-813.

Section

8-10-101. Wages a preferred claim.

When the business of any person, corporation, company, or firm is suspended by the action of creditors or put into the hands of a receiver or trustee, the debts owing to laborers, servants, or employees, which have occurred by reason of their labor or employment shall be considered and treated as preferred claims. Such laborers or employees shall be preferred creditors and shall first be paid in full. If there are not sufficient funds to pay them in full, they shall be paid from the proceeds of the sale of the property seized. Any person interested may contest any such claim, or part thereof, by filing exceptions thereto, supported by affidavit, with the officer having the custody of such property, and thereupon the claimant shall be required to reduce his claim to judgment before a court having jurisdiction thereof before any part thereof is paid.

Source: L. 03: p. 143, § 1. R.S. 08: § 6998. C.L. § 4243. CSA: C. 97, § 217. CRS 53: § 80-12-1. C.R.S. 1963: § 80-16-1.

ANNOTATION

Section should be liberally construed. This section intended to secure wage earners against loss of their earnings from insolvency of employers, is based upon a sound public policy and should be liberally construed in order to accomplish the purpose of its enactment. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

But this section cannot be invoked for the purpose of supporting a decision not based upon the letter or spirit of its enactment, for the general assembly has not created a lien, but has made debts due for labor preferred claims against the property of the debtor, made claimants for wages preferred creditors, and provided that they shall be first paid, which is quite a different thing from the creation of a statutory lien. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

This section contains no provisions as to the time in which exceptions to claims must be filed. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

For an early enactment on the subject of this section, see Ray v. Hiller, 11 Colo. 445, 18 P. 622 (1888).

8-10-102. Statement of claim presented.

Any laborer, servant, or employee desiring to enforce his claim for wages under this article shall present a statement under oath showing the amount due, the kind of work for which the wages are due, and when performed to the officer, person, or court charged with the property within twenty days after the seizure thereof on any execution or writ of attachment or within sixty days after same has been placed in the hands of any receiver or trustee, and thereupon it is the duty of the person or court having or receiving such statement to pay the amount of the claim to the person entitled thereto.

Source: L. 03: p. 143, § 2. R.S. 08: § 6999. C.L. § 4244. CSA: C. 97, § 218. CRS 53: § 80-12-2. C.R.S. 1963: § 80-16-2.

8-10-103. Payment - prorating - prior mortgage not impaired.

No claim under this article shall be paid until after the expiration of the time in which to present such claim. If the funds realized from the sale of the property seized are insufficient to pay the total claims presented, such funds shall be prorated on such claims. The provisions of this article shall not be construed to extend to creditors who held a duly recorded mortgage upon the property attached which was given for a debt actually existing from such mortgage before the labor was performed.

Source: L. 03: p. 144, § 3. R.S. 08: § 7000. C.L. § 4245. CSA: C. 97, § 219. CRS 53: § 80-12-3. C.R.S. 1963: § 80-16-3.

ANNOTATION

This section places the claims of employees for labor in a preferred class to be paid in preference to other simple contract creditors. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

But it does not create an express statutory lien superior to all other liens without reference to priority. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

And it is not intended to give such claims a preference upon the corpus of mortgaged property. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915); Helm v. Smith, 62 Colo. 203, 162 P. 143 (1916).

A recorded mortgage for an existing debt takes precedence over claims for labor subsequently performed. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

Claims against a going railroad might be preferred over prior mortgage liens. First Nat'l Bank v. Wyman, 16 Colo. App. 468, 66 P. 456 (1901).

But ordinary liabilities of a railway company are preferred to a mortgage debt only when accrued within six months prior to the appointment of a receiver, and this rule is departed from only in extreme cases and for special reasons. Helm v. Smith, 62 Colo. 203, 162 P. 143 (1916).

Moreover, the very existence of such a rule presupposes an affirmative showing of facts sufficient to invoke and warrant its application; and where the record fails to disclose that the railroad involved is a public or quasi-public corporation, or that it had ever been operated as such, and there is no attempt to show that the claims were valid and existing obligations against the company at the time of presentment, much less that they have any of the other attributes or characteristics which would in equity entitle them to preference over a mortgage lien, preference will be denied. Central Sav. Bank v. Newton, 59 Colo. 150, 147 P. 690 (1915).

Thus the salary of an attorney which accrued more than 13 months prior to the appointment of a receiver for a railroad, no effort having been made to enforce payment and the attorney having all the time full knowledge of the bonded indebtedness, was not entitled to a preference. Helm v. Smith, 62 Colo. 203, 162 P. 143 (1916).

Labor Conditions

ARTICLE 11 OCCUPATIONAL SAFETY AND HEALTH

8-11-100.1 to 8-11-125. (Repealed)

Source: L. 80: Entire article repealed, p. 451, § 6, effective April 13.

Editor's note: This article was numbered as articles 2 and 22 of chapter 80, C.R.S. 1963. For amendments to this article prior to its repeal in 1980, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.

ARTICLE 12 COLORADO YOUTH EMPLOYMENT OPPORTUNITY ACT

Editor's note: This article was numbered as article 6 of chapter 80, C.R.S. 1963. The substantive provisions of this article were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume.

Law reviews: For article, "An Overview of Federal and State Wage-Hour Laws -- Part II", see 14 C olo. Law. 781 (1985).

Section

8-12-101. Short title.

This article shall be known and may be cited as the "Colorado Youth Employment Opportunity Act of 1971".

Source: L. 71: R&RE, p. 889, § 1. C.R.S. 1963: § 80-6-13.

ANNOTATION

Law reviews. For article, "One Year Review of Torts", see 36 Dicta 64 (1959).

8-12-102. Legislative declaration.

  1. It is the policy of this state to foster the economic, social, and educational development of young people through employment. Work is an integral factor in providing a sense of purpose, direction, and self-esteem necessary to the overall physical and mental health of an individual. In the first part of this century, state and federal laws and regulations were needed to prevent the exploitation of child labor. Unfortunately, such legislation also has tended, on occasion, to limit and curtail opportunities for minors to participate in reasonable work experiences. Young people, especially those who have completed high school or occupational training and no longer are in school, should not be denied employment opportunities because of arbitrary minimum age limits. Work, however, should be coordinated with schooling wherever appropriate. Work and study combined must be developed in the interest of the youth to be trained.
  2. Repealed.

Source: L. 71: R&RE, p. 889, § 1. C.R.S. 1963: § 80-6-2. L. 99: Entire section amended, p. 289, § 3, effective April 14. L. 2019: (2) repealed, (HB 19-1210), ch. 320, p. 2976, § 5, effective January 1, 2020.

Cross references: For the legislative declaration in HB 19-1210, see section 1 of chapter 320, Session Laws of Colorado 2019.

ANNOTATION

This section does not contemplate nor create a private cause of action for parents against their children's employers. Wrongful death action brought by a minor employee's parents against the minor's employer for the death of the minor which occurred during the course of the scope of the minor's employment was properly dismissed as being barred by the exclusivity provisions of the Workers' Compensation Act. Henderson v. Bear, 968 P.2d 144 (Colo. App. 1998).

8-12-103. Definitions.

As used in this article, unless the context otherwise requires:

  1. Repealed.
  2. "Director" means the director of the division of labor standards and statistics.
  3. "Division" means the division of labor standards and statistics in the department of labor and employment.
  4. "Employment" means any occupation engaged in for compensation in money or other valuable consideration, whether paid to the minor or to some other person, including, but not limited to, occupation as a servant, agent, subagent, or independent contractor.
  5. "Minor" means any person under the age of eighteen, except a person who has received a high school diploma or a passing score on the general educational development examination. The state board of education may administer the general educational development examination to any minor seventeen years of age or older who wishes to be considered an adult for the purpose of this article if such person is qualified to take the examination under the standards established by the state board of education.
  6. "School day" means any day when normal classes are in session during the regular school year in the school district.
  7. "School hours" means that period during which the student is expected to be in school in the school district.

Source: L. 71: R&RE, p. 889, § 1. C.R.S. 1963: § 80-6-3. L. 86: (1) repealed, p. 502, § 125, effective July 1. L. 2016: (2) and (3) amended, (HB 16-1323), ch. 131, p. 378, § 13, effective August 10.

8-12-104. Exemptions.

  1. The provisions of this article, except section 8-12-110, shall not apply to the following:
    1. School work and supervised educational activities;
    2. Home chores;
    3. Work done for a parent or guardian, except where the parent or guardian receives any payment therefor;
    4. Newsboys and newspaper carriers.
  2. Any minor employed as an actor, model, or performer shall be exempt from the provisions of subsection (1) of section 8-12-105.
  3. The director may grant exemptions from any provision of this article, except for sections 8-12-113 and 8-12-114, for an individual minor if he finds that such an exemption would be in the best interests of the minor involved. In granting exemptions, the director shall consider, among other things, the previous training which the minor has received in his proposed occupation and his knowledge of the proper safety measures to be taken in connection with such occupation. The director may require any applicant for an exemption from section 8-12-110 to submit to a test of his ability to perform the skills required for the proposed occupation. Such tests may be administered by a community and technical college, a private occupational school, or any other institution which offers courses in the skills required, which courses are approved by either the state board for community colleges and occupational education or the private occupational school division.
  4. Any employer, minor, minor's parent or guardian, school official, or youth employment specialist may request an exemption, as provided in subsection (3) of this section, from a provision of this article.

Source: L. 71: R&RE, p. 890, § 1. C.R.S. 1963: § 80-6-4. L. 79: (3) amended, p. 1631, § 1, effective July 19. L. 81: (3) amended, p. 850, § 21, effective July 1. L. 90: (3) amended, p. 1160, § 6, effective July 1.

8-12-105. Minimum age requirements - maximum hours of work.

  1. No minor under the age of fourteen shall be permitted employment in this state except as authorized by sections 8-12-104, 8-12-106, and 8-12-107.
  2. On school days, during school hours, no minor under the age of sixteen shall be permitted employment except as provided in section 8-12-113; and, after school hours, no minor under the age of sixteen shall be permitted to work in excess of six hours unless the next day is not a school day.
  3. Except for babysitters, no minor under the age of sixteen shall be permitted to work between the hours of nine-thirty p.m. and five a.m., except as authorized by section 8-12-104 (2), unless the next day is not a school day.
  4. Except for the provisions of subsection (5) of this section, no employer shall be permitted to work a minor more than forty hours in a week or more than eight hours in any twenty-four-hour period. In case of emergencies which may arise in the conduct of an industry or occupation (not subject to a wage order promulgated under article 6 of this title) the director may authorize an employer to allow a minor to work more than eight hours in a twenty-four-hour period. In such emergencies an employee shall be paid at a rate of one and one-half times his time rate as determined in accordance with the provisions of section 8-6-106 for each hour worked in excess of forty hours in a week.
  5. In seasonal employment for the culture, harvest, or care of perishable products where wages are paid on a piece basis, as determined in accordance with the provisions of section 8-6-106, a minor fourteen years of age or older may be permitted to work hours in excess of the limitations of subsection (4) of this section; but in no case is he permitted to work more than twelve hours in any twenty-four-hour period nor more than thirty hours in any seventy-two-hour period; except that a minor fourteen or fifteen years of age may work more than eight hours per day on only ten days in any thirty-day period. Overtime wage provisions of subsection (4) of this section shall not apply to this subsection (5).

Source: L. 71: R&RE, pp. 890, 898, §§ 1, 2. C.R.S. 1963: § 80-6-5. L. 73: p. 938, § 1.

Cross references: For the eight-hour day requirement in general, see article 13 of this title 8.

8-12-106. Permissible occupations at age nine or older.

  1. Subject to the limitations of sections 8-12-105 and 8-12-110, any minor at age nine or older shall be permitted employment in any of the following nonhazardous occupations:
    1. Delivery of handbills, advertising, and advertising samples;
    2. Shoeshining;
    3. Gardening and care of lawns involving no power-driven lawn equipment;
    4. Cleaning of walks involving no power-driven snow-removal equipment;
    5. Casual work usual to the home of the employer and not specifically prohibited in this article;
    6. Caddying on golf courses;
    7. Any other occupation which is similar to those enumerated in this subsection (1) and is not specifically prohibited by this article.

Source: L. 71: R&RE, p. 891, § 1. C.R.S. 1963: § 80-6-6.

8-12-107. Permissible occupations at age twelve or older.

  1. Subject to the limitations of sections 8-12-105 and 8-12-110, any minor at age twelve or older shall be permitted employment in any of the following nonhazardous occupations:
    1. Sale and delivery of periodicals and door-to-door selling of merchandise and the delivery thereof;
    2. Babysitting;
    3. Gardening and care of lawns, including the operation of power-driven lawn equipment if such type of equipment is approved by the division or if the minor has received training conducted or approved by the division in the operation of the equipment;
    4. Cleaning of walks, including the operation of power-driven snow-removal equipment;
    5. Agricultural work, except for that declared to be hazardous under the "Fair Labor Standards Act of 1938", as amended. However, it is the intent of the general assembly that migrant children eligible for attendance at migrant schools be encouraged to attend such schools.
    6. Any other occupation which is similar to those enumerated in this subsection (1) and is not specifically prohibited by this article.

Source: L. 71: R&RE, p. 892, § 1. C.R.S. 1963: § 80-6-7.

Cross references: For the "Fair Labor Standards Act of 1938", see 29 U.S.C. § 201 et seq.

8-12-108. Permissible occupations at age fourteen.

  1. In addition to the occupations permitted by sections 8-12-106 and 8-12-107, and subject to the limitations of sections 8-12-105 and 8-12-110, any minor fourteen years of age or older shall be permitted employment in any of the following occupations:
    1. Nonhazardous occupations in manufacturing;
    2. Public messenger service and errands by foot, bicycle, and public transportation;
    3. Operation of automatic enclosed freight and passenger elevators;
    4. Janitorial and custodial service, including the operation of vacuum cleaners and floor waxers;
    5. Office work and clerical work, including the operation of office equipment;
    6. Warehousing and storage, including unloading and loading of vehicles;
    7. Nonhazardous construction and nonhazardous repair work. The operation of motor vehicles shall be subject to article 2 of title 42, C.R.S.
    8. Occupations in retail food service;
    9. Occupations in gasoline service establishments, including but not limited to dispensing gasoline, oil, and other consumer items, courtesy service, car cleaning, washing, and polishing, the use of hoists where supervised, and changing tires; except that no minor may inflate or change any tire mounted on a rim equipped with a removable retaining ring. The operation of motor vehicles shall be subject to article 2 of title 42, C.R.S.
    10. Occupations in retail stores, including cashiering, selling, modeling, art work, work in advertising departments, window trimming, price marking by hand or machine, assembling orders, packing and shelving, or bagging and carrying out customers' orders;
    11. Occupations in restaurants, hotels, motels, or other public accommodations, except the operation of power food slicers and grinders;
    12. Occupations related to parks or recreation, including but not limited to recreation aides and conservation projects;
    13. Any other occupation which is similar to those enumerated in this subsection (l) and not specifically prohibited by this article.

Source: L. 71: R&RE, p. 892, § 1. C.R.S. 1963: § 80-6-8.

8-12-109. Permissible occupations at age sixteen.

In addition to the occupations permitted by sections 8-12-106 to 8-12-108 and subject to the limitations of sections 8-12-105 and 8-12-110, any minor sixteen years of age or older shall be permitted employment in any occupation which involves the use of a motor vehicle if the minor is licensed to operate the motor vehicle for such purpose pursuant to article 2 of title 42, C.R.S.

Source: L. 71: R&RE, p. 893, § 1. C.R.S. 1963: § 80-6-9.

8-12-110. Hazardous occupations prohibited for minors.

  1. No minor shall be permitted employment in any occupation declared to be hazardous in subsection (2) of this section unless such minor is fourteen years of age or older and he is employed:
    1. Incidental to or upon completion of a program of apprentice training;
    2. Incidental to or upon completion of a student-learner program of occupational education under the auspices of a public school, local district college, community and technical college, federally funded work-training program, or private occupational school approved by the private occupational school division;
    3. Upon completion of any other program of training approved by the state board for community colleges and occupational education; or
    4. Upon completion of a program of occupational education conducted outside this state which the director determines offers instructional quality and content comparable to that offered in programs certified by the state board for community colleges and occupational education.
  2. The following occupations are declared to be hazardous:
    1. Operation of any high pressure steam boiler or high temperature water boiler;
    2. Work which primarily involves the risk of falling from any elevated place located ten feet or more above the ground except that work defined as agricultural involving elevations of twenty feet or less above ground;
    3. Manufacturing, transporting, or storing of explosives;
    4. Mining, logging, oil drilling, or quarrying;
    5. Any occupation involving exposure to radioactive substances or ionizing radiation;
    6. Operation of the following power-driven machinery: Woodworking machines, metal-forming machines, punching or shearing machines, bakery machines, paper products machines, shears, and automatic pin-setting machines and any other power-driven machinery which the director determines to be hazardous;
    7. Slaughter of livestock and rendering and packaging of meat;
    8. Occupations directly involved in the manufacture of brick or other clay construction products or of silica refractory products;
    9. Wrecking or demolition, but not including manual auto wrecking;
    10. Roofing;
    11. Occupations in excavation operations.
  3. The director shall promulgate regulations, in accordance with section 24-4-103, C.R.S., to define the occupations prohibited under this section and to prescribe what types of equipment shall be required to make an occupation nonhazardous for minors.

Source: L. 71: R&RE, p. 893, § 1. C.R.S. 1963: § 80-6-10. L. 79: (1)(b) amended, p. 1631, § 2, effective July 19. L. 81: (1)(b) amended, p. 851, § 22, effective July 1. L. 86: (2)(f) and (3) amended, p. 473, § 34, effective July 1. L. 88: (1)(a) amended, p. 1429, § 3, effective June 11. L. 90: (1)(b) amended, p. 1160, § 7, effective July 1.

8-12-111. Age certificates.

  1. Any employer desiring proof of the age of any minor employee or prospective employee may require the minor to submit an age certificate. Upon request of a minor, an age certificate shall be issued by or under the authority of the school superintendent of the district or county in which the applicant resides. The superintendents, principals, or headmasters of independent or parochial schools shall issue age certificates to minors who attend such schools.
  2. The age certificate shall show the age of the minor, the date of his birth, the date of issuance of the certificate, the name and position of the issuing officer, the name, address, and description of the minor, and what evidence was accepted as proof of age. The age certificate shall also show the school hours applicable and shall state that a separate school release permit is required for minors under sixteen to work on regular school days during such school hours. It shall be signed by the issuing officer and by the minor in his presence.
  3. An age certificate shall not be issued unless the minor's birth certificate or a photocopy or extract thereof is exhibited to the issuing officer, or unless such evidence was previously examined by the school authorities and the information is shown on the school records. If a birth certificate is not available, other documentary evidence such as a baptismal certificate or a passport may be accepted. If such evidence is not available, the parent or guardian shall appear with the minor and shall make an oath before the judge or other officer of the juvenile or county court as to the age of the minor.
  4. The employer shall keep an age certificate received by him for the duration of the minor's employment and shall keep on file all age certificates where they may be readily examined by an agent of the division. Upon termination of employment and upon request, the certificate shall be returned to the minor.

Source: L. 71: R&RE, p. 894, § 1. C.R.S. 1963: § 80-6-11.

8-12-112. Proof of high school diploma, passing score on general educational development examination, or completion of career and technical education program.

Any employer may require proof of a high school diploma, a passing score on the general educational development examination, or completion of a career and technical education program. The employer shall maintain a record of the high school diploma, proof of a passing score on the general educational development examination, or completion of a career and technical education program.

Source: L. 71: R&RE, p. 894, § 1. C.R.S. 1963: § 80-6-12. L. 2017: Entire section amended, (SB 17-294), ch. 264, p. 1384, § 5, effective May 25.

8-12-113. School release permit.

  1. Any minor fourteen or fifteen years of age who wishes to work on school days during school hours shall first secure a school release permit. The permit shall be issued only by the school district superintendent, his agent, or some other person designated by the board of education. The school release permit shall be issued only for a specific position with a designated employer. The permit shall be for a specific length of time not to exceed thirty days. The permit shall be canceled upon the termination of such employment and shall be issued only in the following circumstances:
    1. If the minor is to be employed in an occupation not prohibited by section 8-12-110 and as evidence thereof presents a signed statement from his prospective employer; and
    2. If the parent or guardian of the minor consents to the employment; and
    3. If the issuing officer believes the best interests of the minor will be served by permitting him to work.
  2. The school release permit shall show the name, address, and description of the minor, the name and address of the employer, the kind of work to be performed, and the hours of exemption and shall also require the signature of the parent and the minor in the presence of the issuing officer.
  3. Inasmuch as it is desirable and practical to encourage school attendance by minors at least part time, no school release permit shall be issued under this section unless limited to require class attendance by the minor for at least three class hours each regular school day; except that, in cases of extreme hardship, class attendance may be waived if the issuing officer determines that such action would be in the best interest of the minor.
  4. If the issuing officer is in doubt about whether the proposed employment is in accordance with this article, he shall consult with the division before issuing the permit.
  5. Upon termination for any reason of the employment authorized, the employer shall return the school release permit directly to the issuing officer with a notation showing the date of termination.
  6. The issuing officer is authorized to cancel a school release permit if the issuing officer determines that the action would be in the best interest of the minor. If a school release permit is canceled, for reasons other than the termination of employment for which the permit was granted, the minor shall be entitled to a review of the cancellation by the court having jurisdiction of juvenile matters in the county in which the minor resides, in accordance with the procedures established by section 8-12-114.

Source: L. 71: R&RE, p. 895, § 1. C.R.S. 1963: § 80-6-13.

8-12-114. Appeal from denial or cancellation of school release permit - procedure.

  1. If a minor is refused a school release permit or has had a school release permit canceled for reasons other than the termination of employment for which the permit was granted, he shall be entitled to review by the court having jurisdiction of juvenile matters in the county in which the minor resides, in accordance with the procedures described in this section.
  2. The official who refused to issue or canceled the school release permit shall, upon demand made within five days after the refusal or cancellation, promptly furnish the minor and his parent or guardian with a written statement of the reasons for such refusal or cancellation.
  3. Within five days after the receipt of such statement, the minor and his parent or guardian may petition the court for an order directing the issuance or reissuance of a school release permit. The petition shall state the reasons why the court should issue such an order, and the petitioner shall attach to such petition the statement of the issuing officer obtained as provided in subsection (2) of this section.
  4. The court shall hold a hearing and receive such further testimony and evidence as it deems necessary. If the court finds that the issuance or reissuance of a permit is in the best interest of the minor, it shall grant the petition.
  5. No fee shall be charged by the court in such proceedings.

Source: L. 71: R&RE, p. 896, § 1. C.R.S. 1963: § 80-6-14.

8-12-115. Director of division of labor standards and statistics - powers and duties - rules and regulations.

  1. The director shall enforce the provisions of this article.
  2. The director shall take the necessary steps to inform employers, school authorities, and the general public regarding the provisions of this article, and he shall work with other public and private agencies to minimize the obstacles to legitimate employment of minors.
  3. The director shall receive and investigate complaints and may from time to time visit employers at reasonable times and inspect pertinent records to determine compliance with this article.
    1. If investigation of any place of employment or complaint discloses a violation of this article, except section 8-12-105 (3), the director shall give the employer written notice describing the violation and specifying the provisions of this article that such employer is allegedly violating. Within ten days of receipt of such notice of violation, the employer may file a written request for a hearing on the issue of whether the violation exists, which hearing shall be conducted in accordance with section 24-4-105, C.R.S. After a hearing concerning a violation of this article, or after the expiration of twenty days after the issuance of a notice of violation during which the employer has neither requested a hearing nor ceased the conduct that constitutes the alleged violation, the director may issue a final order requiring the employer to cease and desist the conduct found to be in violation. At any time thereafter, the director may order the violating employer to pay a penalty of twenty dollars for each offense. Each day that the conduct constituting the violation is continued after the order is made final, and each minor employed in violation of this article, constitutes a separate offense. The order imposing the penalty shall become final upon issuance, and the penalty shall be due and payable thirty days after the order assessing the penalty is entered, unless prior to that time the order has been modified or a hearing on the penalty has been requested as provided by section 24-4-105, C.R.S. All penalties imposed by this section shall be collected as provided in section 8-1-142.
      1. If investigation of any place of employment or complaint discloses a violation of section 8-12-105 (3), the director shall give the employer written notice describing the violation and specifying the provisions of this article that such employer is allegedly violating. Within ten days after receipt of such notice of violation, the employer may file a written request for a hearing on the issue of whether the violation exists, which hearing shall be conducted in accordance with section 24-4-105, C.R.S. After a hearing concerning a violation of section 8-12-105 (3), or after the expiration of twenty days after the issuance of a notice of violation during which the employer has neither requested a hearing nor ceased the conduct which constitutes the alleged violation, the director may issue a final order requiring the employer to cease and desist the conduct found to be in violation. At any time thereafter, the director may order the violating employer to pay a penalty pursuant to subparagraph (II) of this paragraph (b). The order imposing the penalty shall become final upon issuance, and the penalty shall be due and payable thirty days after the order assessing the penalty is entered, unless prior to that time the order has been modified or a hearing on the penalty has been requested as provided by section 24-4-105, C.R.S. All penalties imposed by this section shall be collected as provided in section 8-1-142.
      2. Failure to comply with the provisions of this paragraph (b) shall make the offender liable for administrative fines pursuant to the following penalty schedule:
        1. For a first offense, by a fine of not less than two hundred dollars nor more than five hundred dollars;
        2. For a second offense within six months after the first offense, by a fine of not less than five hundred dollars nor more than one thousand dollars;
        3. For a third or subsequent offense within six months after the first offense, by a fine of not less than one thousand dollars nor more than ten thousand dollars.
  5. The findings, orders, and penalties made by the director shall be subject to judicial review pursuant to section 24-4-106, C.R.S.
  6. The director may apply for an injunction in any court of competent jurisdiction to enjoin any person from committing any act prohibited by this article.
  7. The director, in accordance with section 24-4-103, C.R.S., shall promulgate rules and regulations more specifically defining the occupations and types of equipment permitted or prohibited by this article.

Source: L. 71: R&RE, p. 896, § 1. C.R.S. 1963: § 80-6-15. L. 86: (5) and (7) amended, p. 473, § 35, effective July 1. L. 2000: (4) amended, p. 1486, § 1, effective July 1.

8-12-116. Penalty for violations.

  1. Any person, having legal responsibility for a minor under the age of eighteen years, who knowingly permits such minor to be employed in violation of this article, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for each offense.
  2. Any person, firm, or corporation, or any agent, manager, superintendent, or foreman of any firm or corporation, who, by himself or herself or through an agent, subagent, foreman, superintendent, or manager, knowingly violates or knowingly fails to comply with any of the provisions of this article 12 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for each offense. Upon conviction of a second or subsequent offense, such person shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars.

Source: L. 71: R&RE, p. 897, § 1. C.R.S. 1963: § 80-6-16. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3141, § 90, effective March 1, 2022.

ANNOTATION

A parent whose child was injured indirectly by an employer's violation of the Colorado Youth Employment Opportunity Act as to another child does not have a private cause of action under the act. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

8-12-117. Minors covered by workers' compensation.

All minors, whether lawfully or unlawfully employed, shall be subject to the rights and remedies of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, if the employer is included within the meaning of section 8-40-203.

Source: L. 71: R&RE, p. 897, § 1. C.R.S. 1963: § 80-6-17. L. 90: Entire section amended, p. 556, § 3, effective July 1.

ARTICLE 13 EIGHT-HOUR DAY

Cross references: For hours of work for minors, see § 8-12-105; for office hours of county officers, see § 30-10-109.

Law reviews: For article, "An Overview of Federal and State Wage-Hour Laws -- Part II", see 14 C olo. Law. 781 (1985).

Section

8-13-101. Employment declared dangerous.

Employment in all underground mines, underground workings, and smelters is declared to be injurious to health and dangerous to life and limb.

Source: L. 13: p. 306, § 1. C.L. § 4172. CSA: C. 97, § 100. CRS 53: § 80-7-1. C.R.S. 1963: § 80-14-1. L. 87: Entire section amended, p. 376, § 1, effective June 20.

ANNOTATION

Law reviews. For article, "Sex Discrimination and State Protective Laws", see 44 Den. L. J. 344 (1967).

8-13-102. Eight-hour day - exceptions.

  1. The period of employment of persons working in all underground mines, underground workings, and smelters may exceed eight hours within a twenty-four-hour period upon the following conditions:
    1. The operator of the underground mine, underground workings, or smelter establishes a work plan setting forth the terms and conditions under which the period of employment may exceed eight hours in a twenty-four-hour period; and
    2. The operator provides reasonable notice to its employees, except in cases of emergency or upset conditions, of proposed increases in the regular work schedule which would result in a period of employment in excess of eight hours in a twenty-four-hour period. Reasonable notice shall be construed to be not less than one week, during which time affected employees may comment.
  2. Nothing in this section shall be construed so as to alter the provisions of any collective bargaining agreement.

Source: L. 13: p. 306, § 2. C.L. § 4173. CSA: C. 97, § 101. CRS 53: § 80-7-2. C.R.S. 1963: § 80-14-2. L. 87: Entire section amended, p. 376, § 2, effective June 20. L. 89: Entire section R&RE, p. 375, § 1, effective April 5.

ANNOTATION

Law reviews. For article, "Sex Discrimination and State Protective Laws", see 44 Den. L. J. 344 (1967).

Annotator's note. Cases decided prior to the earliest source of § 8-13-102 have been included in the annotations to this section.

Earlier law on subject of this section held unconstitutional. In re Morgan, 26 Colo. 415, 58 P. 1071 (1899).

This section, passed with an emergency clause, cannot be suspended by referendum. Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108 (1916).

For prior legislation relating to the hours of men employed in mines, see In re Senate Resolution, 54 Colo. 262, 130 P. 333 (1913).

8-13-102.1. Period of employment - relation to conservation of fuel.

  1. The general assembly hereby finds and declares that in order to give full effect to state programs for the conservation of fuel and not to impede or prevent the execution of any fuel conservation powers the governor may impose pursuant to part 3 of article 20 of title 24, C.R.S., it is necessary to enact this section. The general assembly further finds and declares that it is necessary to enact this section in order for certain industries to support and cooperate with such state programs and powers and to assist their employees in the conservation of fuel by providing opportunity for certain employers to establish four-day workweeks thereby omitting one day of travel to and from work for employees.
  2. For purposes of section 8-13-102, "period of employment" means time spent which is directly related to an employee's performance of his primary job duties. "Period of employment" does not include time spent, whether or not compensation is paid, which is not directly related to the employee's performance of his primary job duties, including, but not limited to, meal periods, travel time, rest periods, and waiting time.

Source: L. 79: Entire section added, p. 871, § 2, effective June 22.

Editor's note: Part 3 of article 20 of title 24 concerning the fuel conservation powers of the governor which is referred to in subsection (1) was repealed, effective February 1, 1982.

8-13-103. Penalty for violation.

Any person, body corporate, general manager, or employer who violates or causes to be violated any of the provisions of sections 8-13-101 and 8-13-102 commits a class 2 misdemeanor. Each day in violation of the provisions of sections 8-13-101 and 8-13-102 shall constitute a separate offense.

Source: L. 13: p. 306, § 3. C.L. § 4174. CSA: C. 97, § 102. CRS 53: § 80-7-3. C.R.S. 1963: § 80-14-3. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3142, § 91, effective March 1, 2022.

ANNOTATION

Former law held unconstitutional. In re Morgan, 26 Colo. 415, 58 P. 1071 (1899).

8-13-104. Eight-hour day for public employees. (Repealed)

Source: L. 1893: p. 305, § 1. L. 1894: p. 85, § 1. R.S. 08: § 3921. C.L. § 4175. CSA: C. 97, § 103. CRS 53: § 80-7-4. C.R.S. 1963: § 80-14-4. L. 86: Entire section repealed, p. 508, § 1, effective March 26.

8-13-105. Emergency cases. (Repealed)

Source: L. 1893: p. 305, § 2. L. 1894: p. 85, § 2. R.S. 08: § 3922. C.L. § 4176. CSA: C. 97, § 104. CRS 53: § 80-7-5. L. 63: p. 621, § 1. C.R.S. 1963: § 80-14-5. L. 73: p. 942, § 1. L. 75: Entire section R&RE, p. 290, § 1, effective January 1, 1976. L. 86: Entire section repealed, p. 508, § 1, effective March 26.

8-13-106. Penalty for violation. (Repealed)

Source: L. 1893: p. 305, § 2. L. 1894: p. 86, § 3. R.S. 08: § 3923. C.L. § 4177. CSA: C. 97, 104. CRS 53: § 80-7-6. L. 63: p. 621, § 2. C.R.S. 1963: § 80-14-6. L. 86: Entire section repealed, p. 508, § 1, effective March 26.

8-13-107. Firemen - hours of duty.

It is unlawful for any municipality, or any officer or employee thereof, to require any person holding any position or employment in the fire department of such municipality, except one who may be at any time in command of the department, to be or remain on duty in such employment during any calendar month for periods of time which in the aggregate during such month amount to more than twelve hours for each day in said month. The requiring of more hours of work in cases of conflagrations or similar emergencies shall not be unlawful. This section shall apply to all municipalities having fire departments, whether such municipalities are created under general laws, or by special charter, or by or under the provisions of article XX of the constitution of the state of Colorado.

Source: L. 21: p. 333, § 1. C.L. § 4178. CSA: C. 97, § 106. CRS 53: § 80-7-7. C.R.S. 1963: § 80-14-7. L. 86: Entire section amended, p. 508, § 2, effective March 26.

8-13-108. Penalty for violation.

Any officer, agent, or employee of any municipality who orders, directs, compels, or requires any employee or other person in any such fire department, except one who may be at any time in command of the fire department, to be or remain on duty in such work or employment in any calendar month for a longer time than that provided for in section 8-13-107 except in cases of emergency commits a class 2 misdemeanor.

Source: L. 21: p. 334, § 2. C.L. § 4179. CSA: C. 97, § 107. CRS 53: § 80-7-8. C.R.S. 1963: § 80-14-8. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3142, § 92, effective March 1, 2022.

8-13-109. Employment in cement and plaster factories injurious. (Repealed)

Source: L. 27: p. 288, § 1. CSA: C. 97, § 114. CRS 53: § 80-7-15. C.R.S. 1963: § 80-14-12. L. 2000: Entire section repealed, p. 161, § 1, effective March 17.

8-13-110. Overtime not mandatory.

Nothing in this article shall be construed to mandate overtime for employees in and about cement manufacturing plants and plaster manufacturing plants unless otherwise negotiated by contract.

Source: L. 27: p. 288, § 2. CSA: C. 97, § 115. CRS 53: § 80-7-16. C.R.S. 1963: § 80-14-13. L. 2000: Entire section amended, p. 161, § 2, effective March 17.

8-13-111. Penalty for violation. (Repealed)

Source: L. 27: p. 289, § 3. CSA: C. 97, § 116. CRS 53: § 80-7-17. C.R.S. 1963: § 80-14-14. L. 2000: Entire section repealed, p. 161, § 3, effective March 17.

ARTICLE 13.3 FAMILY AND MEDICAL LEAVE

Cross references: For the legislative declaration contained in the 2009 act adding this article, see section 1 of chapter 340, Session Laws of Colorado 2009.

Section

PART 1 PARENTAL INVOLVEMENT

PART 2 FAMILY AND MEDICAL LEAVE ELIGIBILITY

PART 3 FAMILY AND MEDICAL LEAVE IMPLEMENTATION

PART 4 HEALTHY FAMILIES AND WORKPLACES

PART 5 PAID FAMILY AND MEDICAL LEAVE INSURANCE

PART 1 PARENTAL INVOLVEMENT

8-13.3-101 to 8-13.3-104. (Repealed)

Editor's note:

  1. This part 1 was added in 2009 and was not amended prior to its repeal in 2015. For the text of this part 1 prior to 2015, consult the 2014 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
  2. Section 8-13.3-104 provided for the repeal of this part 1, effective September 1, 2015. (See L. 2009, p. 1791.)

PART 2 FAMILY AND MEDICAL LEAVE ELIGIBILITY

Editor's note:

  1. Article 13.3 was enacted in 2009 by HB 09-1057 and included a future repeal for the article in § 8-13.3-104, effective September 1, 2015.
  2. Part 2 of this article was enacted in 2013 by HB 13-1222 and includes a future repeal for this part 2 in § 8-13.3-205, effective when certain conditions specified in this part 2 are met.

8-13.3-201. Short title.

This part 2 shall be known and may be cited as the "Family Care Act".

Source: L. 2013: Entire part added, (HB 13-1222), ch. 157, p. 508, § 1, effective August 7.

8-13.3-202. Definitions.

As used in this part 2, unless the context otherwise requires:

  1. "Civil union" has the same meaning as set forth in section 14-15-103 (1), C.R.S.
  2. "Employee" means a person employed by an employer and who is eligible for FMLA leave.
  3. "Employer" has the same meaning as set forth in the FMLA.
  4. "FMLA" means the federal "Family and Medical Leave Act of 1993", Pub.L. 103-3, as amended, 29 U.S.C. sec. 2601 et seq.
  5. "FMLA leave" means leave from work and all benefits authorized by the FMLA.

Source: L. 2013: Entire part added, (HB 13-1222), ch. 157, p. 508, § 1, effective August 7.

8-13.3-203. Family and medical leave - state requirements.

  1. In addition to the leave to which an employee is entitled under the FMLA, an employee in this state is entitled to FMLA leave to care for a person who has a serious health condition, as that term is defined in the FMLA, if the person:
    1. Is the employee's partner in a civil union, as defined in section 14-15-103 (5), C.R.S.; or
    2. Is the employee's domestic partner and:
      1. Has registered the domestic partnership with the municipality in which the person resides or with the state, if applicable; or
      2. Is recognized by the employer as the employee's domestic partner.
    1. For purposes of confirming an employee's relationship to a person described in subsection (1) of this section for whom the employee is requesting FMLA leave, the employer may require the employee to provide reasonable documentation or a written statement of family relationship, in accordance with the FMLA.
    2. An employer may require an employee seeking FMLA leave for a person described in subsection (1) of this section to submit the same certification as the employer may require under the FMLA.
  3. FMLA leave taken by an employee pursuant to this section runs concurrently with leave taken under the FMLA, and this section does not:
    1. Increase the total amount of leave to which an employee is entitled during a twelve-month period under the FMLA, this section, or both; and
    2. Preclude an employer from granting an employee an amount of leave that exceeds the total amount of leave to which the employee is entitled during a twelve-month period under the FMLA.

Source: L. 2013: Entire part added, (HB 13-1222), ch. 157, p. 509, § 1, effective August 7.

8-13.3-204. Enforcement.

If an employer denies an employee in this state FMLA leave to care for a person described in section 8-13.3-203 who is not a person for whom the employee would be entitled to leave under the FMLA, or interferes with an employee's exercise of or attempt to exercise his or her right to FMLA leave for persons described in section 8-13.3-203, the employer is subject to damages and equitable relief as specified in the FMLA. An aggrieved employee may bring an action in state court against the employer to recover damages or equitable relief.

Source: L. 2013: Entire part added, (HB 13-1222), ch. 157, p. 509, § 1, effective August 7.

8-13.3-205. Repeal of part.

This part 2 is repealed if the United States congress enacts and the president signs federal legislation amending the FMLA to permit employees to use FMLA leave for all persons described in section 8-13.3-203. The executive director of the department of labor and employment shall notify the revisor of statutes, in writing, if the condition specified in this section occurs.

Source: L. 2013: Entire part added, (HB 13-1222), ch. 157, p. 510, § 1, effective August 7.

Editor's note:

  1. As of publication date, the revisor of statutes has not received the notice referred to in this section.
    1. Effective March 27, 2015, the United States Department of Labor's Wage and Hour Division revised the regulation defining "spouse" under the Family and Medical Leave Act of 1993 (FMLA) in light of the U.S. Supreme Court's decision in United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), which held section 3 of the Defense of Marriage Act, 1 U.S.C. section 7, unconstitutional. The applicable regulations, 29 CFR 825.102 and 825.122(b), define spouse to include an individual in a same-sex marriage that was entered into in a state that recognizes such marriages or, if entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state.
    2. On March 26, 2015, the U.S. District Court for the Northern District of Texas, in Texas v. United States, granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the department's final rule revising the regulatory definition of spouse under the FMLA. On June 26, 2015, the district court dissolved the preliminary injunction in light of the Supreme Court's decision in Obergefell v. Hodges, 576 U.S. 644 (2015). For a discussion of Obergefell v. Hodges, see the editor's note for section 31 of article II of the state constitution.

PART 3 FAMILY AND MEDICAL LEAVE IMPLEMENTATION

8-13.3-301. Legislative declaration.

  1. The general assembly hereby finds and declares that:
    1. Colorado is a family-friendly state, and providing the workers of Colorado with family and medical leave insurance will encourage an entrepreneurial atmosphere and economic growth and promote a healthy business climate;
    2. The United States is the only industrialized nation in the world that does not mandate access to paid leave benefits. Simultaneously, nearly half of Americans live paycheck to paycheck and are unable to access two thousand dollars in the event of an emergency.
    3. This part 3 prepares for the implementation of a paid family and medical leave program in the state by completing a thorough analysis of paid family and medical leave programs by experts in the field, the establishment of a family and medical leave implementation task force, and actuarial and third-party studies;
    4. As specified in this part 3:
      1. The timeline for the analysis and implementation of a statewide paid family and medical leave program is as follows:
        1. By July 1, 2019, appointing authorities are required to make their appointments to the task force;
        2. By October 1, 2019, the department is required to provide the task force with the results of a third-party study and paid family and medical leave plan recommendations from the experts in the field, and the task force is required to accept and consider public comment regarding the administration and establishment of a paid family and medical leave program;
        3. By November 1, 2019, the task force shall make its initial recommendation on a family and medical leave program for employees in the state and provide the recommendation to an actuary contracted by the department;
        4. By December 1, 2019, an independent actuarial analysis must be completed and submitted to the task force;
        5. By January 8, 2020, the task force shall report its final recommendation on a paid family and medical leave program for all employees in the state;
      2. The timeline may also be assumed as follows:
        1. By July 1, 2020, the family and medical leave program will be established;
        2. By January 1, 2022, the public education and outreach campaign will begin;
        3. By January 1, 2023, the family and medical leave program funding will begin; and
        4. By January 1, 2024, the family and medical leave program will start paying benefits;
    5. The intent of this part 3 is to assist in the preparation of legislation in the 2020 legislative session establishing a paid family and medical leave program in the state.

Source: L. 2019: Entire part added, (SB 19-188), ch. 352, p. 3246, § 1, effective May 30.

8-13.3-302. Definitions.

As used in this part 3, unless the context otherwise requires:

  1. "Department" means the department of labor and employment.
  2. "Executive director" means the executive director of the department.
  3. "Task force" means the family and medical leave implementation task force created in section 8-13.3-304 (1).

Source: L. 2019: Entire part added, (SB 19-188), ch. 352, p. 3248, § 1, effective May 30.

8-13.3-303. Department to perform analyses.

    1. The department shall analyze the feasibility of contracting with a third party to administer parts of a paid family and medical leave program for all employees in the state as an alternative to state administration of all aspects of such a program. In determining whether a third party should administer parts of a paid family and medical leave program, the department shall consider whether doing so would be cost-effective, in the short term and in the long term for both the state and covered individuals, and lead to more efficient program administration and benefit management while assuring quality, worker experience, affordability, coverage, and program accountability, as compared to if the state administers all aspects of the program.
    2. In fulfilling the requirements of this subsection (1), the department shall make a request for information from third parties that may be willing to administer single or multiple parts of a paid family and medical leave program. The requests for information pursuant to this subsection (1)(b) must solicit information from third parties that includes, but is not limited to, the third party's:
      1. Prior experience with paid family and medical leave insurance or providing monetary benefits in Colorado related to employees taking leave from work due to serious health conditions, parental bonding, or other family and medical leave purposes;
      2. Commitment to affirmative action, diversity, equity, and inclusion policies;
      3. Language access experience and cultural competency; and
      4. Current or expected employee pay rates and benefits.
    3. Any study pursuant to this section must consider:
      1. The estimated difference in administrative costs charged by third parties as compared to a state-run paid family and medical leave program;
      2. The estimated difference in claims processing speeds;
      3. The state's costs to oversee any third-party administration, including costs to conduct annual audits and review regular reports from the third party;
      4. The ability of a third party to satisfy necessary worker privacy and confidentiality requirements;
      5. The ability of a third party to access existing state data or to effectively interface with the department's systems and information;
      6. The potential costs and challenges associated with terminating a third-party contract due to quality or compliance concerns following implementation of the program, as well as the feasibility of timely substituting administration by the state or a different third party without a disruption in benefits and administration; and
      7. A timeline that presumes a paid family and medical leave program that is established by July 1, 2020; begins public education and outreach on January 1, 2022; establishes the funding stream on January 1, 2023; and starts paying benefits on January 1, 2024.
    4. The department's study must specifically address the effect of using a third-party administrator on the following aspects of a paid family and medical leave program:
      1. Claims appeals and administrative enforcement;
      2. Premium rate setting and collection of premiums;
      3. Approval and oversight of private plans, if applicable; and
      4. Management of elective coverage of employees who may not be included in the program.
      1. The department shall contract with at least three experts in the field of paid family and medical leave selected by the task force. The experts must be local and national experts: (2) (a) (I) The department shall contract with at least three experts in the field of paid family and medical leave selected by the task force. The experts must be local and national experts:
        1. With demonstrated experience studying the health, economic, and social benefits of access to paid leave; the cost and economic impact of paid leave; and the drafting and implementation of paid family and medical leave programs at the state level; and
        2. Who have some familiarity with cross-state comparisons.
      2. The department shall commission a report from the experts under contract with the department pursuant to this subsection (2)(a) on the establishment of a paid family and medical leave program for employees in the state. The recommendations must specify the parameters that ensure that a program:
        1. Is affordable for the lowest-wage workers;
        2. Is equitable across workers of all incomes and classifications;
        3. Is accessible particularly to workers least likely to have access to paid leave today;
        4. Is adequate; and
        5. Includes a minimum duration of leave that meets evidence-based standards and wage replacement that is sufficient to allow the lowest-wage workers to participate.
    2. The recommendations must review, evaluate, and assess at least the following elements, without limitation:
      1. The purposes of the leave, including serious illness, caring for a loved one with a serious illness, bonding with a new child, and needs arising from military deployment and the effects of domestic violence, stalking, and sexual assault;
      2. Self-employed workers' access to paid family and medical leave and a mechanism to allow self-employed workers to participate;
      3. Eligibility to take leave;
      4. The definition of family or family member for whom an individual may take leave for purposes of providing care;
      5. Job protection and other employment protections, including their effect on an individual's ability to take leave;
      6. The duration of leave;
      7. The amount of the wage replacement;
      8. The maximum weekly wage replacement amount;
      9. The program funding structure;
      10. Program implementation;
      11. The role of third-party vendors on program sustainability;
      12. The solvency of a paid family and medical leave fund under various models;
      13. The portability of paid family and medical leave benefits;
      14. The sustainability of a paid family and medical leave program;
      15. How a paid family and medical leave program would interact with other benefits; and
      16. A timeline that presumes a paid family and medical leave program that is established by July 1, 2020; begins education and outreach on January 1, 2022; establishes the funding stream on January 1, 2023; and starts paying benefits on January 1, 2024.
  3. No later than October 1, 2019:
    1. The department shall provide the task force created in section 8-13.3-304 with:
      1. The results of the third-party study conducted pursuant to subsection (1) of this section; and
      2. The paid family and medical leave plan report from experts commissioned in accordance with subsection (2) of this section; and
    2. The department of public health and environment shall provide the task force with a report detailing the health benefits related to paid family and medical leave.
  4. The department shall contract for the services of a qualified private actuary to perform an actuarial study of the initial recommendation for a family and medical leave program created by the task force pursuant to section 8-13.3-304 (8)(b). The actuarial study shall be provided to the task force no later than December 1, 2019.

Source: L. 2019: Entire part added, (SB 19-188), ch. 352, p. 3248, § 1, effective May 30.

8-13.3-304. Family and medical leave implementation task force.

  1. There is hereby created in the department the family and medical leave implementation task force.
  2. The task force consists of the following members:
    1. Three members who are workers or represent an organization that represents workers' interests in paid family and medical leave, each of whom shall be appointed from a list of at least three names submitted by a recognized statewide organization that promotes workers' rights;
    2. Three members who are private employers with a range of business size and experience in providing employees with paid family and medical leave, each of whom shall be appointed from a list of at least three names submitted by a recognized statewide organization of employers;
    3. One member who is a representative of a state policy organization that works on issues of economic opportunity;
    4. One member who is a private insurer with experience in administering temporary disability or family and medical leave insurance benefits;
    5. One member who represents a state policy organization that works on health advocacy;
    6. One labor economist with demonstrated research or expertise in studying paid family and medical leave and labor standards, and the data necessary to do so;
    7. One member who is a representative of a statewide domestic violence organization;
    8. One member who is a professional from a recognized institution of higher education and who has expertise in studying paid family and medical leave;
    9. One member who is a representative of organized labor; and
    10. Two nonvoting members, one of whom must represent the department.
  3. The members of the task force are appointed as follows:
    1. The governor shall appoint one member;
    2. The speaker of the house of representatives shall appoint four members;
    3. The president of the senate shall appoint four members;
    4. The house minority leader shall appoint two members;
    5. The senate minority leader shall appoint two members;
    6. The executive director shall appoint one nonvoting member; and
    7. The executive director of the department of personnel shall appoint one nonvoting member.
    1. The appointing authorities shall make the appointments to the task force no later than July 1, 2019.
    2. In making the appointments, the appointing authorities shall ensure that the appointments reflect communities of color, rural communities, and historically underutilized businesses, as defined in section 24-49.5-105 (4).
    3. The department shall assist and coordinate the appointing authorities to ensure that members appointed to the task force pursuant to subsection (3) of this section meet the membership requirements specified in subsection (2) of this section.
  5. Each member of the task force serves at the pleasure of the appointing authority.
  6. Each member of the task force serves without compensation but is entitled to receive reimbursement for actual and necessary expenses the member incurs in the performance of the member's duties as a member of the task force.
    1. The member appointed by the executive director shall call the first meeting of the task force.
    2. The task force shall elect a chair from among its voting members.
    1. No later than September 1, 2019, the task force shall accept and consider public comment regarding the administration and establishment of a paid family and medical leave program in the state. The task force shall receive public comment for a minimum of thirty days.
    2. No later than November 1, 2019, the task force shall make an initial recommendation on a family and medical leave program for employees in the state and provide the recommendation to the actuary contracted by the department pursuant to section 8-13.3-303 (4). In making the recommendation, the task force shall consider the information it receives pursuant to section 8-13.3-303 (3).
    3. No later than January 8, 2020, after consideration of the actuarial analysis performed on the task force's initial recommendation, the task force shall report its final recommendation on a paid family and medical leave program for all employees in the state, along with the third-party administration study made pursuant to section 8-13.3-303 (1), and the actuarial study made pursuant to section 8-13.3-303 (4) to:
      1. The senate committees on finance and business, labor, and technology, or their successor committees;
      2. The house of representatives committees on finance and business affairs and labor, or their successor committees; and
      3. The governor.
    4. Recommendations made by the task force pursuant to this subsection (8) should attempt to meet a timeline that presumes a paid family and medical leave program that is established by July 1, 2020; begins education and outreach on January 1, 2022; establishes the funding stream on January 1, 2023; and starts paying benefits on January 1, 2024.
  9. Upon request by the task force, the department shall provide office space, equipment, and staff services as may be necessary to implement this section.

Source: L. 2019: Entire part added, (SB 19-188), ch. 352, p. 3251, § 1, effective May 30.

8-13.3-305. Paid family and medical leave program implementation authorization.

The department shall not implement the recommended plan for a paid family and medical leave program unless the general assembly, acting by bill, directs the department to implement the program. If the department is directed to implement the plan, it shall begin implementation by a date specified by the general assembly acting by bill.

Source: L. 2019: Entire part added, (SB 19-188), ch. 352, p. 3253, § 1, effective May 30.

PART 4 HEALTHY FAMILIES AND WORKPLACES

Law Reviews: For article, "Paid Sick Leave Requirements under the Healthy Families and Workplaces Act", see 49 C olo. Law. 46 (Dec. 2020).

8-13.3-401. Short title.

The short title of this part 4 is the "Healthy Families and Workplaces Act".

Source: L. 2020: Entire part added, (SB 20-205), ch. 294, p. 1443, § 1, effective July 14.

8-13.3-402. Definitions.

As used in this part 4, unless the context otherwise requires:

  1. "Director" means the director of the division.
  2. "Division" means the division of labor standards and statistics in the department of labor and employment created in section 8-1-103.
  3. "Domestic abuse" has the meaning set forth in section 13-14-101 (2).
  4. "Employee" has the meaning set forth in section 8-4-101 (5). "Employee" does not include an "employee" as defined in 45 U.S.C. sec. 351 (d) who is subject to the federal "Railroad Unemployment Insurance Act", 45 U.S.C. sec. 351 et seq.
    1. "Employer" has the meaning set forth in section 8-4-101 (6); except that the term includes the state and its agencies or entities, counties, cities and counties, municipalities, school districts, and any political subdivisions of the state.
    2. "Employer" does not include the federal government.
  6. "Family member" means:
    1. An employee's immediate family member, as defined in section 2-4-401 (3.7);
    2. A child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor; or
    3. A person for whom the employee is responsible for providing or arranging health- or safety-related care.
  7. "Harassment" has the meaning set forth in section 18-9-111.
      1. "Paid sick leave" means time off from work that is: (8) (a) (I) "Paid sick leave" means time off from work that is:
        1. Compensated at the same hourly rate or salary and with the same benefits, including health care benefits, as the employee normally earns during hours worked; and
        2. Provided by an employer to an employee for one or more of the purposes described in sections 8-13.3-404 to 8-13.3-406.
      2. As used in subsection (8)(a)(I)(A) of this section:
        1. "Same hourly rate or salary" under this part 4 does not include overtime, bonuses, or holiday pay.
        2. For employees paid on a commission basis only, "same hourly rate or salary" means a rate of no less than the applicable minimum wage.
        3. For employees paid an hourly, weekly, or monthly wage and also paid on a commission basis, "same hourly rate or salary" means the rate of pay equivalent to the employee's hourly, weekly, or monthly wage or the applicable minimum wage, whichever is greater.
    2. "Paid sick leave" is "wages" as defined in section 8-4-101 (14).
  9. "Public health emergency" means:
    1. An act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which:
      1. An emergency is declared by a federal, state, or local public health agency; or
      2. A disaster emergency is declared by the governor; or
    2. A highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.
  10. "Retaliatory personnel action" means:
    1. The denial of any right guaranteed under this part 4; or
    2. Any adverse action against an employee for exercising any right guaranteed in this part 4, including:
      1. Any threat, discipline, discharge, suspension, demotion, reduction of hours, or reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of the employee to a federal, state, or local agency; or
      2. Any sanctions against an employee who is the recipient of public benefits for rights guaranteed under this part 4; or
      3. Interference with or punishment for participating in or assisting, in any manner, an investigation, proceeding, or hearing under this part 4.
  11. "Sexual assault" has the meaning set forth in section 18-3-402.
  12. "Successor employer" means an employing unit, whether or not an employing unit at the time of acquisition, that becomes an employer subject to this part 4 because it acquires all of an organization, a trade, or a business or substantially all of the assets of one or more employers subject to this part 4.
  13. "Year" means a regular and consecutive twelve-month period as determined by an employer; except that, for the purposes of section 8-13.3-411, "year" means a calendar year.

Source: L. 2020: Entire part added, (SB 20-205), ch. 294, p. 1443, § 1, effective July 14.

8-13.3-403. Paid sick leave - accrual - carry forward to subsequent year - comparable leave provided by employer - no payment for unused leave - rules.

    1. All employees working in Colorado have the right to paid sick leave as specified in this part 4.
    2. Repealed.
    3. Effective January 1, 2022, each employer shall provide each employee paid sick leave as provided in this section.
    1. Each employee earns at least one hour of paid sick leave for every thirty hours worked by the employee; except that an employee is not entitled under this section to earn or use more than forty-eight hours of paid sick leave each year, unless the employer selects a higher limit. An employer may satisfy the accrual requirements of this section by providing the employee with an amount of paid sick leave that meets or exceeds the requirements of this section at the beginning of the year. Nothing in this section discourages or prohibits an employer from providing paid sick leave that accrues at a faster or more generous rate than required by this section. This subsection (2)(a) does not limit the ability of an employee to use paid sick leave as provided in section 8-13.3-405.
    2. Nothing in this part 4 precludes an employer from providing employees more paid sick leave than the amounts specified in this subsection (2).
    3. An employee who is exempt from overtime required in section 8-6-111 (4) accrues paid sick leave based on the assumption that the employee works forty hours per week. If the employee's normal workweek consists of fewer than forty hours, the employee accrues paid sick leave based upon the number of hours that comprise the employee's normal workweek.
    1. An employee begins to accrue paid sick leave when employment with the employer begins and may use accrued paid sick leave as it is accrued.
    2. Up to forty-eight hours of paid sick leave that an employee accrues in a year but does not use carries forward to, and may be used in, a subsequent year; except that an employer is not required to allow the employee to use more than forty-eight hours of paid sick leave in a year.
  4. An employer that has a paid leave policy for its employees may satisfy the requirements of this section and section 8-13.3-405 and is not required to provide additional paid sick leave to its employees if the employer:
    1. Makes available to its employees, through its paid leave policy, an amount of paid leave sufficient to satisfy section 8-13.3-405 and meet the accrual requirements of subsection (2)(a) of this section; and
    2. Allows its employees to use the paid leave for the same purposes and under the same conditions as those applicable to paid sick leave under this part 4.
    1. Except as specified in subsection (5)(b) of this section, and notwithstanding section 8-4-101 (14)(a)(IV), nothing in this section requires an employer to provide financial or other reimbursement of unused paid sick leave to an employee upon termination, resignation, retirement, or other separation from employment; except that an individual may recover paid sick leave as a remedy for a retaliatory personnel action that prevented the individual from using paid sick leave.
    2. If an employee separates from employment and is rehired by the same employer within six months after the separation, the employer shall reinstate any paid sick leave that the employee had accrued but not used during the employee's previous employment with the employer and that had not been converted to monetary compensation to the employee at the time of separation from employment.
  6. An employer may loan paid sick leave to an employee in advance of accrual of paid sick leave by the employee.
  7. If an employee is transferred to a separate division, entity, or location but remains employed by the same employer, the employee is entitled to all paid sick leave accrued at the prior division, entity, or location and is entitled to use all paid sick leave as provided in this section.
  8. If a successor employer succeeds an original employer, all employees of the original employer who remain employed by the successor employer are entitled to all paid sick leave that the employees accrued when employed by the original employer and are entitled to use previously accrued paid sick leave as specified in section 8-13.3-404.
  9. The division shall promulgate rules regarding compensation and accrual of paid sick leave for employees employed and compensated on a fee-for-service basis.

Source: L. 2020: Entire part added, (SB 20-205), ch. 294, p. 1445, § 1, effective July 14.

Editor's note: Subsection (1)(b) provided for the repeal of subsection (1)(b), effective January 1, 2022. (See L. 2020, p. 1445.)

8-13.3-404. Use of paid sick leave - purposes - time increments.

  1. An employer shall allow an employee to use the employee's accrued paid sick leave to be absent from work when:
    1. The employee:
      1. Has a mental or physical illness, injury, or health condition that prevents the employee from working;
      2. Needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or
      3. Needs to obtain preventive medical care;
    2. The employee needs to care for a family member who:
      1. Has a mental or physical illness, injury, or health condition;
      2. Needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or
      3. Needs to obtain preventive medical care;
    3. The employee or the employee's family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to:
      1. Seek medical attention for the employee or the employee's family member to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment;
      2. Obtain services from a victim services organization;
      3. Obtain mental health or other counseling;
      4. Seek relocation due to the domestic abuse, sexual assault, or harassment; or
      5. Seek legal services, including preparation for or participation in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment; or
    4. Due to a public health emergency, a public official has ordered closure of:
      1. The employee's place of business; or
      2. The school or place of care of the employee's child and the employee needs to be absent from work to care for the employee's child.