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You are probably familiar with the federal minimum wage, which is currently only $7.25 per hour under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The federal rate has been stuck at this low level for over a decade.
The federal minimum wage applies to all employees who work for employers who make at least $500,000.00 per year in “interstate commerce.” It is a “floor,” so to speak, and states are not generally permitted to have a standard that is lower than the minimum wage. States may, however, choose to have a minimum wage that is higher than the federal $7.25, which is what Colorado has done.
The Colorado Minimum Wage Order:
The Colorado minimum wage is currently $11.10 per hour. Based on Colorado voters’ approval of Constitutional Amendment 70 in 2016, the minimum wage is set to increase to $12.00 per hour by 2020.
In addition to a higher minimum wage, Colorado wage and hour law, codified in the Colorado Minimum Wage Order, 7 C.C.R. 1103-1 (“Wage Order”), entitles covered employees to: (1) overtime compensation (one and one-half times employees’ regular rates of pay) for hours worked over 40 per week or 12 per day; (2) 30-minute meal breaks for every 5 hours worked; and (3) paid 10-minute rest breaks for every 4 hours worked. The Wage Order also protects covered employees from paying for their own uniforms, having their tips stolen, and being subject to improper wage deductions.
Problems with the Wage Order’s Coverage:
What many Coloradans might not know, and probably did not know when they voted to raise the state’s minimum wage to $12 per hour, is that the Colorado Minimum Wage Order only applies to employees in four industries: (A) “retail and service;” (B) “commercial support service;” (C) “food and beverage;” and (D) “health and medical.” Despite the decades of litigation that have occurred about the meaning of these categories, it is still unclear which employers are actually part of each industry.
What is clear is that millions of workers have been left out of the Wage Order’s protections. For example, workers in the construction industry, who make up nearly 18% of Colorado’s economy, are specifically excluded from the Wage Order, and therefore not entitled to overtime compensation or breaks. They are also not eligible for assistance from the Colorado Department of Labor and Employment (“CDLE”) in seeking the wages that were promised to them by their employers.
Excluding so many workers from the Wage Order emboldens unscrupulous employers who want to force their employees to work without breaks, without overtime, and even without pay. Knowing that they will not be required to answer to the CDLE or be subject to the damages and penalties provided by Colorado wage and hour law, companies in construction and other industries misclassify employees as “independent contractors,” require employees to work full days without breaks and without paying them overtime compensation, issue bad checks to employees, pay employees less than they were offered for a job (often in cash without keeping records), and simply withhold the money earned by employees.
Now is the Time to Expand Coverage.
We believe that all employees in Colorado should be covered by the Minimum Wage Order, and receive the Colorado minimum wage, overtime compensation, and breaks. We believe excluding millions of hard-working Coloradans from the law is detrimental to the health and well-being of the workers, and to the State of Colorado as a whole.
The CDLE is currently accepting public comments regarding the coverage and provisions of the Minimum Wage Order (you can find the CDLE’s announcement here). If you believe that the minimum standards in the Wage Order should apply to everyone – as so many Coloradans believed they would when they voted in 2016 – please consider taking a few minutes to send in a comment.
Towards Justice, a nonprofit that leads Colorado in its fight for worker rights, has created a portal for Colorado residents to quickly and easily submit comments to the CDLE on these important issues. You can find it here.
Please feel free to reach out to our wage and hour attorneys if you have any questions about Colorado wage and hour law.
