Wages and Overtime
Your most basic right as an employee is to be paid for the work that you do. The US Congress, and Colorado’s legislature, have enacted a number of laws that recognize the importance of this right. If you are a member of a union, your collective bargaining agreement may impose on your employer additional requirements as to pay rates and hours.
Here are a few questions we frequently get about wage and overtime claims.
- When does my employer have to pay me?
- Unless you expressly agree to a different arrangement, your employer must establish regular pay periods. These periods can be no less often than one month. You must be paid on regular paydays no more than ten days after the close of each pay period.
- I’ve been fired. When should I get my final paycheck?
When you are fired, your employer, in most cases, is required to pay you by the end of the same business day. (If the employer’s accounting unit is not open when you are fired, you must be paid on the following business day.)
- I quit my job. When should I get my final paycheck?
When you leave a job voluntarily, your employer is not required to pay you until your next regularly scheduled payday.
- My employer has not given me my paycheck. What can I do?
The Colorado Wage Claim Act allows you to send the employer a written demand for wages. If you send the demand and the employer still doesn’t pay you what you are owed within fourteen days, the employer can be held responsible not only for your pay, but for the attorney fees you incur recovering your pay, and for a penalty that is normally the greater of ten days’ pay, or an amount equal to 125% of the first $7,500 owed plus 50% of the remainder of the pay you are owed. The penalty may increase by an additional 50% if the employer willfully withheld your pay.
You can get a wage demand form, and report wage violations, at the Colorado Department of Labor’s Wage and Hour Division’s web site, or by calling (303) 572-2241. Or, call, e-mail, or stop by our office and we can provide you with the form without charge.
The Wage and Hour Division also has a new administrative process for claims of up to $7,500. You can find information about the process, and a form to start an investigation, at the same web site. Although the form asks for more detail about your claim, the process is designed to be simple and faster than taking your case to court. Since this is a new program, the Department of Labor is not yet processing the administrative claims as quickly as you might hope, but we expect this will improve.
- What deductions can my employer take from my paycheck?
Your employer can only make deductions specifically permitted by the Wage Claim Act. These include automatic deductions under a retirement plan, deductions you have specifically authorized (such as for loans, advances or employee benefits), and, of course taxes and Federal withholdings.
An employer may also deduct amounts needed to cover losses from an employee’s failure to return property on termination from employment, or from employee theft, but the employer must follow certain procedures that protect employees from unsubtantiated allegations.
- What is overtime?
In general, if your employer permits you to work more than forty hours per week, you are entitled to overtime time at a rate one and one-half times your regular hourly rate. However, there are a number of exceptions and variations of the general rule.
The overtime rules are found in the Fair Labor Standards Act, a Federal law; in rules the U.S. Secretary of Labor has adopted; and in state laws and regulations. The laws and the rules are lengthy and complicated. The most common situations where an employer is not required to pay overtime relate to certain types of employees: professionals, executives, managers, high-level administrators, outside salespeople, and workers in certain specialized industries. Workers within these exceptions are commonly referred to by employers as “exempt.”
For example, certain employees working in a “bona fide” executive capacity are not required to receive overtime. Whether an employee is genuinely working in an executive capacity depends in turn on a number of other factors described in the regulations, including the level of responsibility, the number of employees supervised, and how the employee is paid.
- I’ve heard there are new overtime regulations for ‘white collar’ workers. What do they say?
The U.S. Department of Labor overhauled its regulations in 2004. The regulations made important changes to the “white collar” exemptions: those that apply to executive, administrative, and professional employees. In general, the regulations now provide:
- Salaried workers who earn $455 per week are always entitled to overtime. This level will increase to $913 per week on December 1, 2016.
- White-collar workers who earn a salary of over $100,000 annually are not entitled to overtime. This level will increase to $134,004 on December 1, 2016.
- Public safety first-responders are not exempt.
- Veterans are not automatically exempt by virtue of their military service.
- The regulations also include new rules for specific occupations, including financial services workers, insurance claims adjusters, nurses, and technologists and technicians.
You can get more information about the exempt workers from these “fact sheets” at the Department of Labor’s web site. If your employer is planning to change its overtime policies, or reclassify your job, you may need independent legal advice.
- My employer says I don’t have a right to overtime because I’m on a salary. Is that right?
No. If all an employer had to do to avoid paying overtime were to pay on a salary basis, all employees would be salaried, and the overtime laws would be meaningless.
To be exempt from paying overtime to an employee, the employee must fit within one of the specific exemptions described in the law. There is no general exemption for salaried employees.