Colorado § 8-4-103 - Payment of wages - insufficient funds - pay statement - record retention - gratuity notification - penalties.

§ 8-4-103. Payment of wages - insufficient funds - pay statement - record retention - gratuity notification - penalties.

(1) (a) All wages or compensation, other than those mentioned in section 8-4-109, earned by any employee in any employment, other than those specified in subsection (3) of this section, shall be due and payable for regular pay periods of no greater duration than one calendar month or thirty days, whichever is longer, and on regular paydays no later than ten days following the close of each pay period unless the employer and the employee shall mutually agree on any other alternative period of wage or salary payments.

(b) An employer is subject to the penalties specified in section 8-4-113 (1) if, two or more times within any twenty-four-month period, the employer causes an employee's check, draft, or order to not be paid because the employer's bank does not honor an employee's paycheck upon presentment. The director may investigate complaints regarding alleged violations of this paragraph (b).

(2) (a) In agricultural, horticultural, and floricultural pursuits and in stock or poultry raising, when the employee in such employments is boarded and lodged by the employer, all wages or compensation earned by any employee in such employment shall be due and payable for regular periods of no greater duration than one month and on paydays no later than ten days following the close of each pay period.

(b) Nothing in paragraph (a) of this subsection (2), as amended by House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general assembly, shall be construed as changing the property tax classification of property owned by a floricultural operation.

(3) Nothing in this article shall apply to compensation payments due an employee under a profit-sharing plan, a pension plan, or other similar deferred compensation programs.

(4) Every employer shall at least monthly, or at the time of each payment of wages or compensation, furnish to each employee an itemized pay statement in writing showing the following:

(a) Gross wages earned;

(b) All withholdings and deductions;

(c) Net wages earned;

(d) The inclusive dates of the pay period;

(e) The name of the employee or the employee's social security number; and

(f) The name and address of the employer.

(4.5) An employer shall retain records reflecting the information contained in an employee's itemized pay statement as described in subsection (4) of this section for a period of at least three years after the wages or compensation were due. The records shall be available for inspection by the division, and the employer shall provide copies of the records upon request by the division or the employee. The director may impose a fine of up to two hundred fifty dollars per employee per month on an employer who violates this subsection (4.5) up to a maximum fine of seven thousand five hundred dollars.

(5) Each field labor contractor shall keep, for a period of three years on each migratory laborer, records of wage rates offered, wages earned, number of hours worked, or, in the case of contractual or piecework where a field labor contractor pays the employee, the aggregate amount earned and all withholdings from wages on a form furnished by and in the manner prescribed by the division. In addition, in each pay period, each field labor contractor shall provide to each migratory laborer engaged in agricultural employment a statement of the gross earnings of the laborer for the period and all deductions and withholdings therefrom. The director may prescribe appropriate forms for use pursuant to this subsection (5). All such payroll records shall be filed with the division quarterly or at any time said labor contractor leaves this state or terminates his or her contract. The director is charged with the responsibility of making periodic reports to the governor's committee on migrant labor.

(6) It is unlawful for an employer engaged in a business where the custom prevails of the giving of gratuities by patrons to an employee of the business to assert a claim to, or right of ownership in, or control over gratuities. These gratuities are the sole property of the employee unless the employer notifies each patron in writing, including by a notice on a menu, table tent, or receipt, that gratuities are shared by employees. Nothing in this section prevents an employer from requiring employees to share or allocate gratuities on a preestablished basis among the employees of the business.

Source: L. 2003: Entire article amended with relocations, p. 1853, § 1, effective August 6. L. 2005: (2) amended, p. 347, § 1, effective August 8. L. 2009: (1) amended, (HB 09-1108), ch. 161, p. 696, § 1, effective August 5. L. 2014: (4.5) added, (SB 14-005), ch. 276, p. 1112, § 3, effective January 1, 2015. L. 2019: (6) amended, (HB 19-1254), ch. 168, p. 1969, § 2, effective August 2.

Editor's note: This section is similar to former §§ 8-4-102 (3), 8-4-105, and 8-4-115, as they existed prior to 2003, and the former § 8-4-103 was relocated to § 8-4-104.

Cross references: (1) For the short title ("Wage Protection Act of 2014") in SB 14-005, see section 1 of chapter 276, Session Laws of Colorado 2014.

(2) For the legislative declaration in HB 19-1254, see section 1 of chapter 168, Session Laws of Colorado 2019.

ANNOTATION

Annotator's note. Since § 8-4-103 is similar to § 8-4-105 as it existed prior to the 2003 amendment to article 4, which resulted in the relocation of provisions, relevant cases construing that provision have been included in the annotations to this section.

A contract to pay wages "when convenient to pay" must be construed as imposing an obligation to pay at some time. Royal Tiger Mines Co. v. Ahearn, 97 Colo. 116, 47 P.2d 692 (1935) (decided under repealed CSA, C. 97, § 200).

Section 8-4-104 and this section are mutually exclusive. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

And distinguishable. Section 8-4-104 creates a right in an employee under one set of circumstances together with a cause of action for a penalty, while this section creates a right in an employee under a different set of circumstances, and does not provide for a penalty. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Entitlement to attorney fees. If plaintiff were required to bring a claim for both wages and penalties under § 8-4-104 and this section in order to be entitled to attorney fees, the reference to this section in § 8-4-114 would be meaningless, contrary to the other language of the statute, and inconsistent with the rules of statutory construction which require that the "entire statute is intended to be effective", and that every word must be given effect, if possible. Hofer v. Polly Little Realtors, Inc., 37 Colo. App. 86, 543 P.2d 114 (1975).

Section 8-4-114 applies to recovery under either. Even though it is not clear from the judgment, based on the jury verdict, whether the employee's recovery was under § 8-4-104 or this section, § 8-4-114 applies to either. Keeton v. Rike, 38 Colo. App. 505, 559 P.2d 262 (1977).

"Deferred compensation programs" do not encompass vacation pay. Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318 (1979).

Applied in Lampley v. Celebrity Homes, Inc., 42 Colo. App. 359, 594 P.2d 605 (1979); Mau v. E.P.H. Corp., 638 P.2d 777 (Colo. 1981).