As used in this article 4, unless the context otherwise requires:
"Citation" means a written determination by the division that a wage payment requirement has been violated.
"Credit" means an arrangement or understanding with the bank or other drawee forthe payment of an order, check, draft, note, memorandum, or other acknowledgment of indebtedness.
"Director" means the director of the division of labor standards and statistics or his orher designee.
"Division" means the division of labor standards and statistics in the department oflabor and employment.
"Employee" means any person, including a migratory laborer, performing labor orservices for the benefit of an employer. For the purpose of this article 4, relevant factors in determining whether a person is an employee include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; except that an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an "employee".
"Employer" has the same meaning as set forth in the federal "Fair Labor StandardsAct", 29 U.S.C. sec. 203 (d), and includes a foreign labor contractor and a migratory field labor contractor or crew leader; except that the provisions of this article 4 do not apply to the state or its agencies or entities, counties, cities and counties, municipal corporations, quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage conservation companies or districts organized and existing under the laws of Colorado.
"Field labor contractor" means anyone who contracts with an employer to recruit,solicit, hire, or furnish migratory labor for agricultural purposes to do any one or more of the following activities in this state: Hoeing, thinning, topping, sacking, hauling, harvesting, cleaning, cutting, sorting, and other direct manual labor affecting beets, onions, lettuce, potatoes, tomatoes, and other products, fruits, or crops in which labor is seasonal in this state. Such term shall not include a farmer or grower, packinghouse operator, ginner, or warehouseman or any full-time regular and year-round employee of the farmer or grower, packinghouse operator, ginner, or warehouseman who engages in such activities, nor shall it include any migratory laborer who engages in such activities with regard to such migratory laborer's own children, spouse, parents, siblings, or grandparents.
"Fine" means any monetary amount assessed against an employer and payable to thedivision.
(8.5) "Foreign labor contractor" means any person who recruits or solicits for compensation a foreign worker who resides outside of the United States in furtherance of that worker's employment in Colorado; except that "foreign labor contractor" does not include any entity of the federal, state, or local government.
"Migratory laborer" means any person from within or without the limits of the stateof Colorado who offers his or her services to a field labor contractor, whether from within or from without the limits of the state of Colorado, so that said field labor contractor may enter into a contract with any employer to furnish the services of said migratory laborers in seasonal employment.
"Notice of assessment" means a written notice by the division, based on a citation,that the employer must pay the amount of wages, penalties, or fines assessed.
"Notice of complaint" means the letter sent by the division as described in section8-4-111 (2)(a).
"Penalty" means any monetary amount assessed against an employer and payable toan employee.
"Wage complaint" means a complaint filed with the division from an employee forunpaid wages alleging that an employer has violated section 15 of article XVIII of the Colorado constitution, this article, article 6 of this title, or any rule adopted by the director pursuant to this article or article 6 of this title.
(a) "Wages" or "compensation" means:
All amounts for labor or service performed by employees, whether the amount isfixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculating the same or whether the labor or service is performed under contract, subcontract, partnership, subpartnership, station plan, or other agreement for the performance of labor or service if the labor or service to be paid for is performed personally by the person demanding payment. No amount is considered to be wages or compensation until such amount is earned, vested, and determinable, at which time such amount shall be payable to the employee pursuant to this article.
Bonuses or commissions earned for labor or services performed in accordance withthe terms of any agreement between an employer and employee;
Vacation pay earned in accordance with the terms of any agreement. If an employerprovides 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.
"Paid sick leave" as provided in part 4 of article 13.3 of this title 8.
(b) "Wages" or "compensation" does not include severance pay.
(15) "Written demand" means any written demand for wages or compensation from or on behalf of an employee, including a notice of complaint, mailed or delivered to the employer's correct address.
Source: L. 2003: Entire article amended with relocations, p. 1850, § 1, effective August 6. L. 2014: Entire section amended, (SB 14-005), ch. 276, p. 1110, § 2, effective January 1, 2015. L. 2016: (3) and (4) amended, (HB 16-1323), ch. 131, p. 378, § 10, effective August 10.
L. 2019: IP, (5), and (6) amended and (8.5) added, (HB 19-1267), ch. 182, p. 2058, § 2, effective January 1, 2020. L. 2020: (14)(a)(IV) added, (SB 20-205), ch. 294, p. 1457, § 2, effective July 14.
Editor's note: Section 4 of chapter 294 (SB 20-205), Session Laws of Colorado 2020, provides that the act changing this section applies to conduct occurring on or after July 14, 2020.
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 19-1267, see section 1 of chapter 182, Session Laws of Colorado 2019.