In addition to traditional at-will employees or contract employees, many employers may use the services of temporary employees, independent contractors, or consultants (and employees of independent contractors or consultants).

When an employer hires an employee for a temporary period or for a season, the temporary employee is still an at-will employee of the employer, and the relationship is governed by the same laws as those applicable to at-will employees. 

An independent contractor or consultant is not considered an employee of the employer.  Instead, an individual independent contractor is self-employed, and payments made to the independent contractor are considered contract payments rather than wages. The U.S. Internal Revenue Service ("IRS") and other governmental agencies have a variety of tests for determining whether a worker is an employee or an independent contractor, which, despite variations among the tests, tend to share the same primary factors.  Essentially, workers who are performing the same job and performing under the same supervision as regular employees are usually deemed to be employees. The Colorado Federal Unemployment Tax Act (C.R.S. § 8-70-115) and the Colorado Workers' Compensation Act (C.R.S. § 8-40-202) set forth a number of factors to consider in determining whether a contractor is considered an employee. The inquiry includes whether or not the person or entity for whom the contractor performs services: (1) requires the individual to work exclusively for the person for whom services are performed, except that the individual may choose to work exclusively for such person for a finite period of time specified in a written document; (2) establishes a quality standard for the individual, except that the person may provide plans and specifications regarding the work but cannot oversee the actual work or instruct the individual as to how the work will be performed; (3) pays a salary or an hourly rate instead of at a fixed or contract rate; (4) terminates the work of the service provider during the contract period, unless such service provider violates the terms of the contract or fails to produce a result that meets the specifications of the contract; (5) provides more than minimal training for the individual; (6) provides tools or benefits to the individual, except that materials and equipment may be supplied; (7) dictates the time of performance, except that a completion schedule and a range of negotiated and mutually agreeable work hours may be established; (8) pays the service provider personally instead of making checks payable to the trade or business name of such service provider; and (9) combines the business operations of the person for whom service is provided in any way with the business operations of the service. 

These factors have also been adopted at common law.  See Western Logistics, Inc. v. Indus. Claim Appeals Office, 325 P. 3d 550, 553 (Colo. 2014); Indus. Claim Appeals Office v. Softrock Geological Serv., Inc., 325 P. 3d 560, 563 (Colo. 2014).

The consequences of incorrectly classifying an employee as an independent contractor can be far-reaching and expensive (e.g., liability for unpaid payroll taxes and penalties, administrative claims for benefits provided to regular employees, liability for unpaid unemployment insurance and workers’ compensation premiums, increased exposure to governmental audits, and potential exposure to employment-related civil suits and administrative claims).

It is not required or necessary to enter into an employment agreement with any employee. If an organization chooses to enter into an employment agreement with a particular employee, such agreements typically spell out the term of employment (even if it is at-will), duties, compensation, and circumstances under which the agreement may be terminated by either party. In addition, such agreements often contain provisions requiring key employees to keep the information confidential even after they leave employment and barring them from becoming employed by certain competing organizations for a limited period of time following termination. Note, however, that in Colorado, non-compete agreements, with few exceptions, are void and therefore unenforceable. Colorado law also recognizes fixed-term contracts that are either express or implied.

If the parties enter into a services contract, the agreement creates a rebuttable presumption of an independent contractor relationship if the document contains a disclosure, in type which is larger than the other provisions in the document or in bold-faced or underlined type, that the independent contractor is not entitled to workers' compensation benefits and that the independent contractor is obligated to pay federal and state income tax on any amounts of money earned pursuant to the contractual relationship. Additionally, all signatures on any such document must be duly notarized. See C.R.S. § 8-40-202(2)(b)(IV).

An enforceable contract requires mutual assent to an exchange, between competent parties, with regard to a certain subject matter, for legal consideration. Denver Truck Exchange v. Perryman, 134 Colo. 586 (Colo. 1957).

An offer is a manifestation by one party of a willingness to enter into a bargain. Restatement (Second) of Contracts 24 (1979).

The terms of the offer must be sufficiently definite that the promises and performances of each party are reasonably certain. Stice v. Peterson, 144 Colo. 219, 224 (Colo. 1960); see also Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App. 2007).

An acceptance is a manifestation of assent to the terms of the offer and, unless otherwise specified in the offer, the offeree may accept by promising to perform or by performing. Restatement (Second) of Contracts § 32 (1979).

Yes, part-time employees are afforded the same rights as full-time employees.

Yes. Contracts are generally assignable in Colorado unless the assignment is restricted by the contract; materially changes the duty of the other party; materially increases the other party's burden or risk; materially impairs the other party's ability to obtain return performance. See C.R.S. § 4-2-210(2).

To avoid any doubt, many employers include a successor and assigns provision, which typically provides that the employer is free to assign the agreement, and the agreement shall inure to the benefit of any of the employer's successors or assigns, but the employee may not assign the agreement.

Not applicable. 

No, Colorado does not have statutory rights for employees on change of control of an employer.

Colorado is an employment-at-will jurisdiction, meaning employers can change the terms of the employment relationship with no notice and no consequences. Absent an employment contract that provides otherwise, an employee may ordinarily be terminated with or without cause provided there is no violation of applicable law.

For additional detail, see the responses to the two questions below.

Colorado is an employment-at-will jurisdiction. Under this arrangement and setting aside the potential applicability of a number of special laws, either the employer or the employee may terminate the employment relationship at any time, for any reason, with or without cause, and with or without advance notice.  In the absence of a written contract or other evidence indicating that an employee may be terminated only “for cause,” employment is generally presumed to be at will.

However, there are a number of special laws, both federal and state, that limit an employer’s unfettered right to terminate traditional at-will employees. These laws prevent employers from firing any employee, whether at-will or not, for illegal reasons (e.g., discriminatory reasons, whistleblowing, or engaging in certain activities protected by law).  Prior to termination, employers should thoroughly review all records concerning the employee or employees in question and carefully assess the risks of litigation. Normally, advance notice of termination should be given. 

Absent an employment contract that provides otherwise, an employee may ordinarily be terminated with or without cause provided there is no violation of applicable law.  An at-will employee can bring a claim for wrongful termination when an employer violates a specific law or legal doctrine (e.g. the Colorado Anti-Discrimination Act (“CADA”)), or a claim for wrongful termination in violation of public policy when the termination is contrary to or violates a clear statement of public policy. 

In order to determine whether a termination was in violation of public policy, the court looks at statutes, regulations, constitutional provisions, and codes of ethics to determine whether a given practice has widely been endorsed or prohibited. An example of a reason for termination that courts have held is in violation of public policy, and therefore an exception to at-will employment, is refusing to perform an illegal act.

Colorado law provides whistleblower protections to both public and private sector employees employed by private enterprises under contracts with state agencies. Under C.R.S. § 24-50.5-103, which protects public employees, and C.R.S. § 24-114-102, which protects private-sector employees, an appointing authority or supervisor cannot initiate or administer any disciplinary action against an employee on account of the employee’s disclosure of information unless the employee knows the information to be false or it is confidential under other provisions of law. Public employees additionally may not disclose information from public records that are closed to public inspection.

Additionally, in response to the COVID-19 pandemic, Colorado enacted a new Public Health Emergency Whistleblower ("PHEW") law which went into effect on July 11, 2020.  See C.R.S. § 8-14.4-101, et. seq. The PHEW law applies to all workers in Colorado, and creates a cause of action for workers who (1) raise concerns about perceived health threats or violations of state and local COVID-19 public health orders; (2) engage in opposition to conduct made unlawful by the PHEW law, or (3) participate in protected activity under the PHEW law.

While employees do not have a general right to privacy in the workplace, they may bring a cause of action under the privacy torts. There are three causes of action under the right of privacy tort: (1) intrusion upon physical solitude; (2) public disclosure of private facts; and (3) appropriation of name or likeness. Intrusion upon seclusion is the most widely recognized privacy claim in the employment context. As a remedy, successful plaintiffs may recover general damages for harm to a plaintiff's interest in privacy resulting from the invasion, damages for mental suffering, special damages, and nominal damages if the plaintiff proves no other damages. Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1066 (Colo. Ct. App. 1998).

Additionally, there are several Colorado statutes that extend specific protections to employees.

C.R.S. § 10-3-1104.7 prohibits disclosure of genetic testing information for purposes other than diagnosis, treatment, or therapy without specific written consent.  An employee aggrieved under this law may bring a civil lawsuit for equitable relief; the greater of either actual damages or $10,000 per violation; reasonable costs; and attorneys' fees. See C.R.S. § 10-3-1104.7(12), (13).

C.R.S. §§ 18-9-303 to 18-9-305 prohibit communication interception and eavesdropping without one party's consent. This law does not provide a private right of action.

C.R.S. § 24-34-402.5 prohibits Colorado employers from discriminating against or terminating employees for engaging in any lawful activity off the premises of the employer during nonworking hours unless the restriction by the employer (1) relates to a bona fide occupational requirement or is reasonably related to the employment activities and responsibilities of a particular employee or group of employees, rather than to all employees of the employer or (2) is necessary to avoid a conflict of interest with the employee’s duties to the employer or the appearance of such a conflict. Under this law, plaintiffs may recover lost wages and benefits, attorneys' fees, and costs. See C.R.S. § 24-34-402.5(2).

Under C.R.S. § 8-2-129, all covered employers must allow a requesting employee to inspect and obtain a copy of his personnel file at least annually and a former employee to access his personnel file once after the termination of employment. The law does not provide for a private right of action. See C.R.S. § 8-2-129(3)(a).

Under C.R.S. § 8-2-127, with respect to a social media account, employers may not "suggest, request, or require" employees or applicants to disclose a username, password, or other means for accessing a personal account; add anyone, including the employer or his agent, to the account's list of contacts; or change privacy settings. This law does not provide for a private right of action.

Yes. Under CADA, at C.R.S. § 24-34-402, it is a discriminatory or unfair employment practice for an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry. CADA is applied much like Title VII of the Civil Rights Act of 1964. Prevailing employees or applicants may obtain back pay, front pay, or other equitable relief.

Vacation and Sick Leave:

Colorado employers are not required to offer paid (or unpaid) vacation. If an employer elects to provide such benefits, however, they should be uniformly applied in conformity with a written policy. "Wages" and "compensation" include vacation pay that is earned under the terms of any agreement.  If an employer provides 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. C.R.S. § 8-4-101(14)(a)(III).

In July of 2020, Colorado passed the Healthy Families and Workplaces Act (“HFWA”) at C.R.S. §§ 8-13.3-401—8-13.3-418. Under the HFWA, Colorado employers with 16 or more employees are required to provide employees with at least one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year.  In addition, all Colorado employers, regardless of size, are required to provide public health emergency (“PHE”) leave for reasons related to the PHE that has been declared in Colorado in 2021. Full-time employees are entitled to a one-time supplement of 80 hours of PHE leave. Part-time employees are entitled to at least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period. Employees can use PHE leave until four weeks after the official termination or suspension of the PHE in Colorado.

Medical and Parental Leave:

In 2020, Colorado’s Paid Family and Medical Leave Insurance Act (“FAMLI Act”) became law upon passage of Proposition 118 by statewide vote. The FAMLI Act provides for up to 12 weeks of paid leave for a range of family and medical needs. However, the FAMLI Act mandates specific planning, funding, and implementation schedule for that paid leave system. As of January 1, 2024, leave pursuant to the FAMLI Act is available to eligible Colorado employees. FAMLI Act leave is designed to run concurrently with FMLA leave. 

Additionally, under C.R.S. § 8-13.3-203, Colorado extends coverage to care for a partner under the FMLA to same-sex couples in a civil union or domestic partnership, who would be eligible for FMLA leave had they been heterosexual married couples.

Colorado's non-compete statute generally voids most non-compete agreements in Colorado. See C.R.S. § 8-2-113.  There are statutory exceptions authorized for the purchase and sale of a business or the assets of a business; protection of trade secrets; and recovery of expenses for educating and training an employer who has served an employer for less than two years. C.R.S. § 8-2-113(2).

Restrictive covenants that qualify under one of the exceptions must be reasonable in terms of duration and geographic scope. Restrictions must (1) be reasonable, (2) not impose an undue hardship on a party, (3) be no greater than necessary to afford the required protection. See Knoebel Mercantile Co. v. Siders, 439 P.2d 355, 358 (Colo. 1968). Courts will examine the facts and circumstances of each case to determine what is reasonable. Knoebel, 439 P.2d at 358-59.

Colorado has not set a particular time period as a reasonable duration for non-competition provisions. However, covenant periods of up to five years have been enforced. See, e.g., Fuller v. Brough, 411 P. 2d 18 (Colo. 1966); Flower Haven, Inc. v. Palmer, 502 P.2d 424 (Colo. Ct. App. 1972).

In terms of geographic scope, restrictions must be related to the territory where a former employee worked and the customers he or she served. For example, restrictions that were not fixed when a non-compete agreement was entered into have been deemed reasonable based on the employee's territory during his employment with the former employer and the scope of the employer's operations or the customers or clients with whom the employee had contact. See Gulick v. A. Robert Strawn & Assocs., Inc., 477 P.2d 489 (Colo. Ct. App. 1970). Additionally, a geographic restriction prohibiting competition within a ten-mile radius of any of the employer's franchise locations was held unreasonable and modified to instead prevent former employees from competing within ten miles of the single location of the franchise in which the former employee worked. Rocky Mountain Chocolate Factory, Inc. v. SDMS, Inc., 2007 WL 4268962 (D. Colo. Nov. 30, 2007).

Employees may be terminated for refusing to sign a restrictive covenant. Colorado courts have found an offer of employment, employment to which an employee was not previously entitled, and continued employment for an at-will employee to be sufficient consideration to support a contract containing a restrictive covenant. See Knoebel Mercantile Co. v. Siders, 439 P.2d 355, 356-57 (Colo. 1968); Metro. State Faculty Fed'n v. Colorado, 514 P.2d 784, 786 (Colo. 1973); Lucht's Concrete Pumping, Inc. v. Horner, 255 P.3d 1058, 1062 (Colo. 2011).

Employers are not required to provide employees with retirement benefits, welfare plans, severance pay, or other voluntary benefits.  If an employer does establish such plans, however, they are governed by the federal Employee Retirement Income Security Act (“ERISA”). Under ERISA, employee benefit plans must comply with numerous and complex procedural requirements. There are no statutory requirements for private employers to contribute to a retirement scheme. For public employers affiliated with the Colorado Public Employees' Retirement Association ("PERA"), employers and employees are required to make contributions. See C.R.S. § 24-51-101, et seq.

Generally, all employers who employ one or more employees must provide workers’ compensation insurance for their employees. There are some limited exemptions from this requirement, but the workers’ compensation benefits are the only benefits available for an employee injured in an “on the job accident.” An employee who is injured while performing work for the employer cannot sue the employer for his/her injury but is compensated through workers’ compensation. See C.R.S. § 8-40-201, et. seq.

Additionally, unemployment benefits come from taxes paid by employers on the wages of their workers, and they are mandatory for eligible employees. Employers, and nonprofit and charitable organizations who have had four or more employees for some portion of a day in each of twenty different weeks within the current or preceding calendar year, are covered by the Colorado Employment Security Act, which governs unemployment benefits. To be eligible for unemployment benefits, an employee must be unemployed through no fault of his or her own. If the employee meets a host of other eligibility factors, he or she may be entitled to benefits. See C.R.S. § 8-70-101, et. seq.

While benefits such as retirement plans, vacation pay, and paid sick leave are not required by law, many employers choose to provide employees with such benefits in order to attract and retain the most qualified workers. If such benefits are provided, they should be administered in a non-discriminatory fashion. As with permanent employees, legally mandated benefits, such as workers’ compensation insurance and unemployment insurance, must be offered to temporary employees. Optional benefits, such as 401(k) plans, need not be offered to temporary employees.

Colorado has no state law regarding mandatory retirement. However, the federal Age Discrimination in Employment Act (“ADEA”) applies to all employers with 20 or more employees employed in an industry affecting commerce. Additionally, under 29 U.S.C.A. § 631, setting a mandatory retirement age is prohibited, unless an employee is at least 65 years old, holds a bona fide executive or high policy-making position for the two-year period before retirement, and is entitled to annual retirement benefits of at least $44,000.

Retirement benefits, including pension benefits, can cease depending upon a combination of the plan document provisions and federal law (e.g., the Internal Revenue Code of 1986, as amended, and ERISA).

Colorado law does not require that employers provide any disability or medical insurance benefits. However, if such benefits are provided, the plans may be subject to ERISA, the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or Health Insurance Portability and Accountability Act (“HIPPA”).

ERISA contains specific requirements governing the creation, modification, maintenance, and reporting of employer pension and retirement plans as well as other plans relating to employee health and welfare benefits. ERISA generally preempts state laws governing employee plans and arrangements.

COBRA requires employers who provide employee health and medical benefits to provide notification to employees of their COBRA rights at the time of a “qualifying event” such as a resignation or an involuntary termination of employment. COBRA applies to employers with more than 20 employees. Where COBRA does not apply (e.g., employers with 2 to 19 employees), Colorado has a “mini-COBRA” law to provide continuation coverage for eligible employees who have employer group health insurance.

HIPPA imposes requirements on employers and group health plan providers and insurers, such as nondiscrimination and disclosure requirements, special enrollment rights, and special notice obligations.

Under Colorado law, employers should be mindful of the Public Health Emergency Whistleblower ("PHEW") law, described above, in deciding whether to make the COVID-19 vaccine mandatory. This statute prohibits employers from taking adverse action against employees who raise good-faith concerns about workplace violations of government health or safety rules or “about an otherwise significant workplace threat to health or safety” related to a public health emergency if the employer “controls the workplace conditions giving rise to the threat or violation.” If an employee believes in good faith that a mandatory vaccination requirement is a significant workplace threat to health or safety, the employee may be protected from termination.

Additionally, a mandatory vaccination policy may implicate Colorado’s lawful-off duty conduct statute, also described above. Because the law prohibits employers from terminating employees for engaging in lawful activities during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities/responsibilities of an employee or a particular group of workers, terminating an employee for engaging in vocal antivaccination protests or advocacy on his/her own time could run afoul of the law.

Employers should also be conscious of obligations under both state and federal anti-discrimination laws.

Under the ADA and CADA, mandated vaccinations must be “job-related and consistent with business necessity.” Assuming a COVID-19 shot would satisfy the standard, the ADA still requires exemptions if employees have ADA-covered disabilities that may prevent them from taking the vaccine. Employers should consider “reasonable accommodations” such as an exemption or additional personal protective equipment.

Further, Title VII and CADA require employers to accommodate employees who can’t take a vaccine because of a sincerely held religious belief, practice, or observance.  As with the ADA, employers must reasonably accommodate employees’ qualifying religious objections under Title VII and CADA, at least absent “undue hardship” to the business, although the standard in the religious context is less stringent for employers than under the ADA.

If an employee has an adverse reaction to the vaccine, the mandatory vaccination may form the basis of a viable workers’ compensation claim. Notably, in Colorado, workers’ compensation laws supplant employee tort claims.

Mandating vaccinations could implicate potential labor law issues. Vaccinations have become highly politicized, and it’s possible a mandatory shot policy will face resistance from certain employees or groups of workers. Whether union or nonunion, employees have the right under the NLRA to engage in protected, concerted activity and protest the company’s actions, and employers could be liable for disciplining or terminating employees for this conduct.

If an employer requires that employees return to work in the office, Colorado employees may take paid sick leave or PHE leave for any of the purposes and to the extent provided under Colorado’s HFWA.

Otherwise, the same laws implicated by a mandatory vaccination policy similarly apply to a return to the work requirement. Under Colorado’s PHEW law, if an employee believes in good faith that returning to work causes a significant workplace threat to health or safety, the employee may be protected from termination. Additionally, under Colorado’s lawful-off duty conduct statute, terminating an employee for advocating against the return to work on his/her own time could run afoul of the law.

Under the ADA and CADA, a return to work policy should be “job-related and consistent with business necessity.” If employees have ADA-covered disabilities that may prevent them from returning to in-office work, employers should consider remote work as a “reasonable accommodation.”

If an employee contracts COVID-19 in the workplace and it can be traced to the employer, the employee may have a workers’ compensation claim. Finally, employees have the right under the NLRA to engage in protected, concerted activity and protest the company’s return to work policy. Employers could be liable for disciplining or terminating employees for this conduct.