Three issues in Colorado regarding vacation pay

Colorado law, CRS 8-4-101 defines vacation to be a part of “wages” when “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.” As such, an employee cannot agree to waive vacation, or any other “wages,” once “earned, pursuant to CRS 8-4-121, and CRS 8-4-109 requires that such vacation, along with all other “wages,” to be paid out in final paychecks.

Despite what seems relatively clear statutory language on first blush, three issues persist. Colorado employers have received some fleshout on at least two.

1. Can an employer impose conditions on the payout of vacation in a final paycheck? The Colorado Court of Appeals says, yes.

A recent Colorado Court of Appeals case suggests the law may not be that simple. In  Nieto v. Clark’s Mkt., Inc.,  the employer added a twist in its handbook. There, a policy said that an employee “forfeits all earned vacation and pay benefits” if they fail to provide 2-week notice before quitting. The employee cited the foregoing statutes, arguing the vacation could not be waived and had to be paid out in the final paycheck.

The Court of Appeals held for the company. The Court of Appeals looked to the “terms of any agreement,” as required by the statute, in other words, to the language of the vacation policy and held that 2-week notice was a condition of earning the vacation.

Ms. Nieto’s right to compensation for accrued but unused vacation pay depends on the parties’ employment agreement. And that agreement unequivocally says that the vacation pay she seeks wasn’t vested given the circumstances under which she left the Market’s employ.

Is Nieto good law in Colorado, can employers rely comfortably on it? Many would argue that the Colorado Court of Appeals simply got it wrong. However, the deadline for appeal has now passed, so it is certainly the law as between Ms. Nieto and her former employer Clark’s Market, Inc. It is noted too that the decision was selected for official publication, so, unless the Court of Appeals or the Colorado Supreme Court revisit the issue in a future case, it is binding on trial courts. Therefore employers could arguably rely on it for now, so long as they are willing to risk protracted litigation and future appeals.

2. Can an employer apply a use-it-or-lose-it rule to vacation at the end of every year? The Colorado Division of Labor and Employment says, no, but the issue is pending in the Colorado Court of Appeals.

Pending before the Colorado Court of Appeals is Blount, Inc. v. CDLE, in which the Colorado Division of Labor and Employment is asking the Court of Appeals to rule against an employer’s purported use-it-or-lose-it policy. In an apparent effort to end-run the Court’s decision, the CDLE issued on the same day as it filed a brief in the appeal, a new rule (7 CCR 1103-7 rule 2.15) — which it then proceed to rely upon in its brief — stating that employers may not have use-it-or-lose-it policies. How will the Court of Appeals rule? How will the Court of Appeals view the CDLE’s apparent claim-jumping regulation? Will the Court of Appeals take Blount as an opportunity to re-consider or limit Nieto? Stay tuned.

3. Do these same rules apply to PTO or just vacation? The Division of Labor and Employment says, no, these restrictions do not apply to PTO.

As of this summer, callers to the Colorado Division of Labor and Employment will be told it takes the position that these “vacation” rules do not apply to PTO. CRS 8-4-101 speaks only to the inclusion of “vacation” in “wages,” not PTO; therefore, the Division will not currently pursue an administrative wage claim for PTO.

Notwithstanding, employers should realize that some plaintiff attorneys will take such claims to court, but they do so under a contract law theory, not under Colorado’s wage statutes, and as a contract claim, such claims do not carry attorney fees or penalties.