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When a person turns in a month notice that they are quitting…

Customer Question
When a person turns...

When a person turns in a month notice that they are quitting and there vacation time started the first of the year does the employer have to pay the vacation time

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Colorado

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Colo law is at will and employee is full time

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes they have never paid overtime past 40 hours saying it's because it's a manager position is this true

Submitted: 1 month ago.Category: Employment Law
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1/4/2018
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 17,654
Experience: Licensed Texas General Practice Attorney
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The first thing that you need to know is that Colorado is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

Colorado law states that wages include vacation pay earned under any agreement with the employer. If an employer provides paid vacation for an employee, the employer must pay the employee for all accrued and unused vacation time if the employee resigns or is terminated (CO Rev. Stat. Sec. 8-4-101).

Note that this is in accordance with any policy and agreement between employer and employee. That is, the employer can say that you get 1 day of vacation for every two weeks worked. Or 1 day per month, or something like that, and so after 6 months you could have 6 days of vacation, that would need to be paid out if you left. Or the employer can say that after every year of service you get 2 weeks. Or that you get 2 weeks starting on January 1. If you really do get an entire years vacation at the beginning of the new year, then this is going to be considered earned and would have to be paid. In other words, if you could take 2 weeks paid vacation now, then it would be considered accrued and have to be paid.

As far as overtime is concerned, an employee needs to be paid overtime if he's not "exempt" under the Fair Labor Standards Act (FLSA). With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three "tests" to be exempt.

Assuming that you're paid on a salary basis of at least $455 a week, you would also need to perform exempt job duties. For a manager, this would fall under the "exempt executive" classification. Job duties are exempt executive job duties if the employee

  1. regularly supervises two or more other employees, and also
  2. has management as the primary duty of the position, and also,
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

Supervision means what it implies. The supervision must be a regular part of the employee's job, and must be of other employees. Supervision of non-employees does not meet the standard. The "two employees" requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. (Two half-time employees equal one full-time employee.)

"Mere supervision" is not sufficient. In addition, the supervisory employee must have "management" as the "primary duty" of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):

  • interviewing, selecting, and training employees;
  • setting rates of pay and hours of work;
  • maintaining production or sales records (beyond the merely clerical);
  • appraising productivity; handling employee grievances or complaints, or disciplining employees;
  • determining work techniques;
  • planning the work;
  • apportioning work among employees;
  • determining the types of equipment to be used in performing work, or materials needed;
  • planning budgets for work;
  • monitoring work for legal or regulatory compliance;
  • providing for safety and security of the workplace.

Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A "rule of thumb" is to determine if the employee is "in charge" of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for "the boss." Typically, only one employee is "in charge" at any particular time. Thus, for example, if a "sergeant" and a "lieutenant" are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is "in charge" during that time.

An employee may qualify as performing executive job duties even if s/he performs a variety of "regular" job duties as well. For example, the night manager at a fast food restaurant may in reality spend most of the shift preparing food and serving customers. S/he is, however, still "the boss" even when not actually engaged in "active" bossing duties. In the event that some "executive" decisions are required, s/he is there to make them, and this is sufficient.

The final requirement for the executive exemption is that the employee have genuine input into personnel matters. This does not require that the employee be the final decision maker on such matters, but rather that the employee's input is given "particular weight." Usually, it will mean that making personnel recommendations is part of the employee's normal job duties, that the employee makes these kinds of recommendations frequently enough to be a "real" part of the job, and that higher management takes the employee's personnel suggestions or recommendations seriously.

The other job duties test could be administrative. This is the most elusive and imprecise of the definitions of exempt job duties is for exempt "administrative" job duties. The Regulatory definition provides that exempt administrative job duties are

(a) office or nonmanual work, which is
(b) directly related to management or general business operations of the employer or the employer's customers, and
(c) a primary component of which involves the exercise of independent judgment and discretion about
(d) matters of significance.

Assuming that you fit within one of these classifications and are paid in the manner described above (at least $455 a week on a salary basis) then you'd be exempt and not entitled to overtime. But otherwise, you wouldn't be exempt and would be entitled to overtime. It's not enough that it's a "manager position" but rather has to meet the tests to be considered exempt.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Did you have any other questions before you rate this answer?

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Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions).

If you can't see the stars, you may need to scroll up / down / left / or right to see them. This is where you rate so that the question will close out.

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Should I continue to await your response, or may I assist the other customers that are waiting?

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Hello?

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

My apologies, but I must assist the other customers that are waiting. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time (>1 hour) and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Can you see on your screen where you need to rate it? Note that you may need to press a "submit" button after clicking on the appropriate star rating. This is what I'm waiting on from you. Thanks!

Ask Your Own Employment Law Question
Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Please note that I am still waiting for your response or rating...

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Employment Lawyer: ScottyMacEsq, Lawyer replied 1 month ago

Did you have any other questions before you rate this answer?

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