The Colorado Wage Act is designed to protect workers by ensuring they are paid the wages they’ve earned in a timely manner. Under this law, employers are required to pay employees all wages, commissions, and bonuses due, whether agreed upon or earned by the employee’s efforts. This legislation plays an important role in maintaining fair labor practices and protecting the financial interests of workers.
Learn more about the Colorado Wage Act
What Constitutes a “Willful” Violation?
In simple terms, a “willful” violation occurs when an employer knowingly disregards the law or shows reckless disregard for employee rights under the Colorado Wage Act. This means the employer either understands their conduct is prohibited or ignores clear warnings. For example, if an employer receives a complaint about not paying wages on time and fails to investigate or correct the issue, it may be considered willful. Additionally, if an employer has a history of similar violations within the last five years, the law automatically considers the new violation willful. This holds employers accountable for both intentional and careless violations of wage laws.
“Willful” Violations: Colorado Division’s Interpretation of Employer Conduct under FLSA Law
The Colorado Division of Labor and Statistics (“Division”) interprets “willful” consistently with the regulations and cases interpreting this term under the federal Fair Labor Standards Act (“FLSA”), including 29 U.S.C. § 255(a) and 29 C.F.R. § 578.3(c)(1), to include where “the employer knew that its conduct was prohibited … or showed reckless disregard for the requirements” of the law. See Wage Protection Rule 2.18 (incorporating FLSA definition). To act with “reckless disregard” of its obligations under the law, an employer need only have some awareness of the law or of a potential violation, and with this awareness have failed to “diligently” inquire into its legal obligations and ensure compliance therewith, including where the employer ignores complaints or warnings that its conduct is unlawful.
An employer’s second (or more) similar violation in five (5) years is automatically willful. See C.R.S. § 8-4-109(3)(c). Non-similar past violations do not automatically make a second violation willful, but can be evidence of a willful and knowing violation. In Interpretive Notice & Formal Opinion #2B, the Division provides examples of circumstances in which a prior violation may contribute to a willfulness finding:
Questions about Colorado wages? Contact our Denver Employment Lawyers.
Examples of Willful Violations
- Repeat Offenses Within Five Years: If an employer repeats a similar violation within five years, it’s automatically willful.
Example: Failing to pay overtime in 2021 and 2022. - Employer Awareness but Lack of Action: If an employer knows about wage laws but doesn’t act, the violation is likely willful.
Example: Failing to pay overtime despite knowing it’s required. - Failure to Investigate Potential Violations: Ignoring complaints or warnings about wage violations can make the violation willful.
Example: Ignoring an employee’s report of overtime violations. - Failure to Show Diligence in Understanding Wage Laws: Employers must make an effort to comply with wage laws.
Example: Paying below minimum wage without trying to understand the legal requirements.
Penalties for Non-Willful vs. Willful Violations in Colorado
The penalties for violating the Colorado Wage Act depend on whether the violation is willful or non-willful:
- Non-Willful Violation: If an employer fails to pay earned wages within 14 days of a written demand, the penalty is the greater of double the wages owed or $1,000.
- Willful Violation: If the violation is willful, the penalty increases to the greater of three times the wages owed or $3,000.
These penalties are designed to encourage prompt wage payment, with higher penalties for intentional non-compliance.
Longer Statute of Limitations for Willful Violations
For willful violations, the period of liability is longer – unpaid wages may be awarded for a three (3) year look back period – as opposed to a limitations period of two (2) years for a non-willful violation.
Protect Your Right to Fair Wages
If your employer has failed to pay wages, overtime, or bonuses, you may have a claim under Colorado law. Contact Baird Quinn, LLC today to protect your rights and pursue the compensation you’re owed.