According to the Colorado Department of Labor and Employment (CDLE), employers in the health and medical industries must provide employees with compensated duty-free rest periods. In a recent case, the Colorado Court of Appeals announced that certain employees now have a private right of action under Colorado’s Minimum Wage Act and Wage Claim Act to seek minimum-wage compensation in court if an employer fails to compensate the employee for rest breaks.
In Pilmenstein v. Devereaux Cleo Wallace, an employee working as a direct care provider sued her employer for failing to provide duty-free rest periods. 2021 COA 59, ¶ 1. The employee cited several Colorado Minimum Wage Orders promulgated by the CDLE as the basis for compensation in lieu of the mandatory rest periods. Id. at *2. The court determined that employees in health and medical industries may seek such compensation but it is limited to only the minimum wage for the time worked that should have been properly granted as a rest period. Id. at *7. In that case, the plaintiffs stipulated that they would only seek the minimum wage for unpaid yet worked rest periods; it remains to be seen if other parties at some future date will argue that employees should instead be compensated at agreed upon hourly rates rather than the minimum wage.
For an example of how this compensation scheme works: if a medical provider is forced to work over a 12-hour shift, that worker must forgo three 10-minute breaks (one 10-minute break for every four hours of work) and is thus eligible for compensation at the minimum wage for that time that the worker did not get as a break. The minimum wage in Colorado in 2021 is $12.31, so the provider is entitled to $6.15 for that shift. Although this amount may be small for one worker on a daily basis, employers can very quickly accumulate substantial monetary liabilities if breaks are not properly managed. Additionally, companies who lose in court may owe affected plaintiff employees attorney fees.
If you are an employer in Colorado and need assistance understanding your responsibilities under the CDLE’s regulations, or if you are an employee and believe you are being denied proper compensation, please contact us at 303-622-3883. We can help.