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Just Another Day in HR

    July 24, 2025
    By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo
     
    You are in your office one gorgeous Colorado morning enjoying a nice cup of coffee while wondering what’s on your schedule for the day. Suddenly, there is a knock on the door, and a few moments later, Bob, an hourly employee at the organization, walks in. “Morning,” he says, “I’ve been meaning to talk to you about a couple of things.” “Of course,” you respond, “the organization’s Human Resources Department is always happy to assist. What’s on your mind?”  He tells you, “Did you know that in our department the following things are taking place:”
     
    • Scenario #1: “My supervisor keeps texting me after hours asking me questions about my work that day and he makes us come into work for 30-minute trainings before our scheduled shifts.  I’m just wondering if I should be getting paid for that time.” 
    • Scenario #2: “My supervisor also tells those of us in the department that we are absolutely not supposed to work overtime.  And if we get close to 40 hours, he shoos us out the door.  Frankly, I miss those overtime hours because I don’t get to work them very often anymore.” 
    • Scenario #3: “My supervisor doesn’t say anything to me when I don’t take a 10-minute break.  I mean, don’t get me wrong, he’s constantly harping on us that we are always authorized and permitted to take a 10-minute break. But when we don’t, he doesn’t say anything about it.  And there are a lot of days that I don’t take a break because I love my job so much. Franky, I generally think breaks are overrated. But now I’m wondering if I should be getting extra pay for those missed breaks.” 
    • Scenario #4: “You know how I have two job duties that are paid at different rates?  Well, when I do work overtime, he always pays me 1 ½ the lower rate.  I think we should get overtime pay at the higher rate.” 
    When he finishes, you think to yourself, “well, I guess I know what I’m doing for the rest of the day.”
     
    How should you handle each scenario that has more layers than an onion? 
     
    Scenario #1: The key to most wage issues starts with what is and what is not considered “work time.” 
     
    For example, the federal law (i.e., Fair Labor Standards Act (“FLSA”)) identifies by statutory definition that the term “employ” includes when the employee “…suffer[s] or [is] permit[ted] to work” and that the workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty, or at a prescribed work place.
     
    Colorado state law (i.e., the Colorado Overtime and Minimum Pay Standards (“COMPS”) defines “time worked” as “time during which an employee is performing labor or services for the benefit of an employer, including all time he/she is suffered or permitted to work, whether or not required to do so.”
     
    Interestingly, both definitions define work using the term, “suffer.”  [Insert joke here.]  
     
    That interesting fact aside, in our Scenario #1, Bob is clearly “suffering” (a.k.a. “working”) when the supervisor is texting him after hours and when Bob shows up for training before the scheduled shift.  So, your first order of business is going to ensure that Bob’s timecards accurately reflect that time.  After all, claims for off-the-clock work are a frequent source of litigation, including class action lawsuits. 
     
    Scenario #2: Of course, under both federal and Colorado state law, employees who work over 40 hours in a workweek must receive 1 ½ times their regular rate of pay.  So, there is not anything necessarily unlawful with the supervisor keeping employees from working more than 40 hours in a workweek.  The key follow-up to that, though, will be for you to determine whether employees are not recording their hours worked so as not to draw the supervisor’s ire for working over 40 hours.  Again, if the employee is working, the employee needs to record the hours worked so that the employer can properly compensate the employee. 
     
    Scenario #3: Ah, yes, the dreaded “break-time issue.” Fortunately, for employers not covered by COMPS (e.g., state or its agencies or entities, counties and cities, municipal corporations, quasi-municipal corporations, etc.), this isn’t an issue because rest breaks are only required by state law (i.e., not federal law). For those covered by COMPS, COMPS requires that “every employer shall authorize and permit a compensated 10-minute rest period for each 4 hours of work, or major fractions thereof.” So, there may be some good news in this scenario because it appears that Bob’s supervisor is frequently articulating the company’s policy that the employees are, in fact, “authorized and permitted” to take breaks even though Bob isn’t taking a break because he doesn’t want to. As the Colorado Department of Labor and Employment (“CDLE”) explains, “[The rest-period requirement] does not mean that employees must actually have a rest period, if they choose to keep working. However, the choice to skip a rest period must be entirely voluntary and made without employer coercion.” See CDLE Interpretive Notice & Formal Opinion # 4. Nevertheless, when presented with this scenario it would be a good idea to follow up with employees in the department to ensure that the message regarding rest breaks is clearly understood. 
     
    Scenario #4:  The enthusiasm from Scenario #3 quickly dissipates as you realize that Bob’s supervisor is not correctly paying overtime because the supervisor is failing to “blend” Bob’s two rates on a proportional basis to calculate Bob’s overtime compensation. For example, let’s say that Bob gets paid at two rates: $30 for Duty A and $40 for “Duty B”. One week, Bob works a total of 55 hours -- 35 hours on Duty A and 20 hours on Duty B. That calculates as follows: 
     
    1. $30 x 35 hours = $1,050
    2. $40 x 20 hours = $800
    3. Total compensation = $1,850
    4. Blended regular rate = $33.64 ($1,850 / 55 hours)
    5. Overtime:  $33.64 x 15 overtime hours x 0.5 = $252.30
    6. Total Compensation = $2,102.30

    Keep in mind that the reason the organization only needs to pay the .5 in line 5, instead of 1.5, is that the organization has already paid Bob for all hours worked at the applicable rate.  So, now, it only needs to pay the “½” in “1 ½.”

    In sum, it’s not all bad news. But there certainly are some things that you will want to follow up on. Just another day at the office.