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Quick and Easy Guide to Labor & Employment Law: Colorado

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Colorado.

Colorado's 2021 legislative session (first session of the 73rd General Assembly) adjourned on June 8, 2021. The legislature introduced 623 bills and passed 502 of those bills. New laws go into effect on the date written therein.

At-Will Employment

In Colorado, an agreement of employment that is for an indefinite term is presumed to be at will. Either the employer or the employee may terminate at-will employment at any time with or without cause, and such termination generally does not give rise to a claim for relief. Wisehart v. Meganck, 66 P.3d 124, 126 (Colo. App. 2002).

Exceptions:

Legislation and the common law have restricted application of the at-will doctrine to balance the interests of employers and employees. For example, certain federal and state statutes have created private claims for relief for wrongful discharge based on discrimination with respect to race, color, gender, national origin, ancestry, religious affiliation, disability and age. Wisehart v. Meganck, 66 P.3d 124, 126 (Colo. App. 2002).

Colorado also allows for a claim for relief for wrongful discharge in violation of public policy, which restricts an employer's right to terminate when the termination disregards accepted and substantial public policies set by legislative declarations, professional codes of ethics or other sources. Rocky Mountain Hospital & Medical Service v. Mariani, 916 P.2d 519 (Colo.1996).

Due to the presumption of at-will employment, the burden is on the plaintiff to plead and prove circumstances that would authorize application of one of these recognized exceptions to the doctrine. See Schur v. Storage Technology Corp., 878 P.2d 51 (Colo. App. 1994).

Right to Work Laws

Colorado's Labor Peace Act provides the right for employees to join unions but does not require union membership for employees to obtain a job. C.R.S. 8-3-106 to 109. The Act allows shops to go through a process to become "all union" and thus require union membership to be an employee. Id. Under the Labor Peace Act, agricultural employees were not allowed to organize and join labor unions; however, Senate Bill 87, which recently passed in the 2021 legislative session, will expand agricultural workers' rights allowing the right to organize or join labor unions.

Immigration Verification

Colorado places no additional employment verification procedures on most employers beyond Federal I-9 compliance.

There is no requirement to use E-Verify under Colorado state laws for most employers. Colorado state law clarifies that a state agency may not engage in a public contract for services with a contractor who knowingly employees or contracts with undocumented foreign nationals. C.R.S. 8-17.5-102. The contractor must certify that all of its employees will participate in the E-verify program to confirm employment eligibility. Id.

Drug Testing

Colorado has no law prohibiting drug and alcohol testing by private employers. Private employers who have an established drug policy may terminate an employee as the result of a drug test showing the presence of drugs or alcohol above 0.04 percent in the employee's system during working hours. See Slaughter v. John Elway Dodge Southwest, 107 P.3d 1165 (Colo. App. 2005); C.R.S. 8-73-108(5)(e)(IX.5) (indicating that drug tests are allowable and grounds for firing an employee).

In Colorado, employees' common law privacy rights do not limit an employer's right to require them to participate in drug and alcohol testing and disclose all manner of information about their medications and medical conditions, so long as this information is kept confidential and not disseminated.

Drug testing of public employees constitutes a search under the Fourth and Fourteenth Amendments; therefore, a public employer may not conduct drug test without individualized suspicion of wrongdoing. U.S. Const. amends. IV, XIV.

All testing must comply with the Colorado Anti-Discrimination Act and the Americans with Disabilities Act. The testing must be job related and consistent with business necessity if it disparately impacts a protected class of employees or applicants.

The employer must pay the cost of required drug testing. C.R.S. 8-2-118.

Jury Duty Leave

It is unlawful for an employer to discharge, harass, threaten or coerce an employee for any reason relating to the employee's obligation as a juror. C.R.S. 13-71-134. If an employer engages in such behavior, the employer has committed willful harassment of a juror. C.R.S. 18-8-614.

Colorado law requires employers to pay regular employees regular wages, but not exceeding $50 per day unless agreed upon by the employee and employer, for up to three days of juror service. C.R.S. 13-71-126. "Regular employees" includes part-time employees, temporary employees and casual employees whose hours may be determined by schedule or custom established during the three months preceding the employee's jury service. Id.

Voting Leave

Colorado law requires employers to allow employees a two-hour period during the time the polls are open to vote without any reduction in salary or wages. C.R.S. 1-7-102. Employees who wish to leave work to vote must apply for the leave of absence prior to the day of the election. Id. The employer may specify the hours during which the employee may be absent, but the hours must be scheduled at the beginning or end of the work period if the employee so requests. Id. If there is at least a three-hour window of time between the opening or closing of the polls and the time the employee must report to work, the employee need not be provided time during work to vote. Id.

Parental Leave

Generally, under the Family and Medical leave Act (FMLA), employers with 50 or more employees must provide leave under the Act, which must be clearly set out in a policy. In addition to the leave which an employee is entitled to under the FMLA, Colorado employees are entitled to FMLA leave to care for a person who has a serious health condition and is the employee's partner in civil union or domestic partner. C.R.S. 8-13.3-203.

The Healthy Families and Workplace Act (HFWA) provides mandatory sick leave and family leave for Colorado employees. C.R.S. 8-13.3-401. The HFWA requires employers with 16 or more employees to provide paid sick leave to their employees, accrued at one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours, which the employee may carry forward for use in subsequent calendar years. C.R.S. 8-13.3-403. An employer may choose to provide more paid sick leave than specified if they so choose.

Beginning on January 1, 2022, all employers will be subject to the HFWA. Id. Employees are allowed to use accrued paid sick leave for illnesses and health conditions, for obtaining diagnoses or medical care or treatment, for caring for a family member who is ill or has a health condition, for absences related to domestic abuse, sexual assault or harassment, and for caring for a child when the child's school or care provider is closed due to a public health emergency. Id.

Employers must provide additional paid sick leave during a public health emergency. C.R.S. 8-13.3-405.

Other Leave

Colorado law does not require vacation leave or bereavement leave.

However, if an employee's contract includes paid vacation, the employer must pay all vacation-pay earned upon separation from employment. C.R.S. 8-4-109.

Smoking Laws

The Colorado Clean Indoor Air Act prohibits smoking in indoor areas and requires employers regardless of number of employees to provide smoke-free work areas for each employee requesting to not breathe secondhand smoke and emissions from electronic smoking devices. C.R.S. 25-14-204. Exceptions to this rule apply to: private homes or vehicles, unless it is used for child care or transporting a child; limousines under private hire; retail tobacco businesses; cigar bars; and the outdoor area of any business. C.R.S. 25-14-205.

Break Time to Express Milk

Colorado law requires employers to provide reasonable unpaid break time or allow employees to use paid break time and/or meal time for the employee to express breast milk for her nursing child for up to two years after the birth of the child. C.R.S. 8-13.5-104. The employer must make reasonable efforts to provide a private room, other than a toilet stall, near the work area for the nursing mother. Id.

Meal Breaks

The Colorado Overtime and Minimum Pay Standards Order (COMPS) requires employers to provide nonexempt employees an uninterrupted, duty-free 30-minute meal period for shifts longer than five hours. 7 CCR 1103-1:5. The meal break should be at least one hour after the start of the shift and one hour before the end of the shift. Id. The employee need not be compensated for the time during the meal break if the employee is relieved of all duties and allowed to engage in personal activities. Id. If the business does not allow for a duty-free uninterrupted break, the employee must be allowed to consume a meal while performing duties and be fully compensated for the time. Id.

Minimum Wage, Overtime and Wage Recordkeeping

Minimum Wage

Beginning, January 1, 2021, the State of Colorado set minimum wage at not less than $12.32 per hour. 7 CCR 1103-1:3. Employers must still comply with federal wage laws and regulations. Id. The employer can pay tipped employees $9.30 per hour as long as the employee's tips bring the total hourly wage up to the state minimum wage. 7 CCR 1103-1:6.

For non-emancipated minors and persons certified to be less efficient in performance of their job duties due to a physical disability, minimum wage can be reduced by 15 percent. 7 CCR 1103-1:3. Senate Bill 39 was passed during the 2021 legislative session to slowly raise the wage of workers with disabilities or minors over the next four years to reach minimum wage by 2025.

Overtime

Generally, an employee shall be paid time and one-half the regular rate of pay if in excess of: (a) 40 hours per workweek; (b) 12 hours per workday; or (c) 12 consecutive hours without regard to the start and end time of the workday. 7 CCR 1103-1:4.

For more information regarding overtime and minimum wage: cdle.colorado.gov/colorado-overtime-minimum-pay-standards-comps-order

Wage Recordkeeping

An employer must keep records at the place of employment for three years of the name, address, occupation, date of hire, date of birth of under 18, daily record of all hours worked, record of credits claimed and of tips, regular rate of pay, gross wages earned, withholdings made and net amounts paid each pay period. 7 CCR 1103-1:7.

Final Payments

When an employee voluntarily resigns, the paycheck is due on the next regular payday. C.R.S. 8-4-109(1)(b).

When employment is terminated by volition of the employer, unpaid wages are due and payable immediately. C.R.S. 8-4-109(1)(a).

If the accounting department is not immediately available, wages are due no later than six hours after the start of the accounting department's next workday. Id. If accounting is off-site, the employer must provide the wages within 24 hours after the start of the accounting provider's next regular workday. Id. The employer may choose to make the final payment available at the work site, the employer's local office or the employee's last known mailing address. Id.

Unemployment Insurance

Unemployment insurance benefits provide income to individuals from Colorado whose employment was terminated through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage.

Generally, if a person is unemployed or working fewer than 32 hours per week and earning less than the weekly benefit pay amount, the person can file a claim for benefits.

Unemployment benefits are approximately 55 percent of a person's average weekly wage over a 12-month period. The maximum benefit amount is $649 per week.

During the COVID-19 pandemic, there are additional benefits available for those who are self-employed, independent contractors or gig workers.

Unemployment benefits are administered by the Colorado Department of Labor and Employment. Additional information regarding the benefits may be accessed at cdle.colorado.gov/unemployment.

Workers' Compensation

The Workers' Compensation Act of Colorado, C.R.S. 8-40-101 et seq., applies to all employers with one or more employees with additional requirements for businesses in the construction industry. By purchasing insurance in compliance with the Act, the employer assumes responsibility for work-related injuries, regardless of fault, and in return the employer and other employees are immune from tort claims brought by injured employees. Employees who suffer an injury or occupational disease arising out of and in the course of their employment and not intentionally self-inflicted may be eligible to receive several types of benefits under the Act.

The Act is administered by the Colorado Department of Labor & Employment, Division of Worker's Compensation, and more information can be found at cdle.colorado.gov/dwc.

Child Labor

Generally, 14 is the minimum age for employment under Colorado state law. C.R.S. 8-12-105.

No minor under the age of 16 may work on school days during school hours, nor may they work more than six hours after school unless the next day is not a school day. Id. Generally, minors may not work more than 40 hours per week or more than eight hours in a 24-hour period. Id. The laws may be found at cdle.colorado.gov/youth-law.

Gun Laws

Although there will likely be new regulations and laws implemented in Colorado related to firearms, Colorado has no applicable law as of June 2021.

Additional Laws and Regulations

Families First Coronavirus Response Act

From July 14, 2020 through December 31, 2020, all employers (regardless of size) were required to provide all Colorado employees paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the federal "Emergency Paid Sick Leave Act," which is part of the "Families First Coronavirus Response Act." C.R.S. 8-13.3-406.

False or Deceptive Hiring

It is illegal to persuade workers to change to a new place of employment through any false representations concerning the type of work to be done, the compensation to be paid for the work, the conditions of the employment or existence of strikes. C.R.S. 8-2-104.

Equal Pay

Employees cannot pay an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work, as determined by skills, effort and responsibility. C.R.S. 8-5-102. An employer can pay different rates when the difference is based on a seniority system, merit system, system that measures earnings by quantity or quality of production, the geographic location where work is performed, training or travel. Id.

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Guide last updated July 2021.

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